Exhibit 4.2


 


 


 






 


BALL CORPORATION


 


And


 


GUARANTORS


Parties Hereto


 


 


$450,000,000


 


6 5/8% SENIOR NOTES DUE 2018


 






 


FIRST SUPPLEMENTAL INDENTURE


 


Dated as of March 27, 2006


 


To


 


INDENTURE


 


Dated
as of March 27, 2006


 






 


THE BANK OF NEW YORK TRUST COMPANY, N.A.


 


Trustee


 






 

















 


CROSS-REFERENCE TABLE*


 


	
  Trust Indenture

  Act Section

  	
   

  	
  Supplemental

  Indenture Section

  
	
  310(a)(1)

  	
  7.10

  
	
   

  	
  (a)(2)

  	
  7.10

  
	
   

  	
  (a)(3)

  	
  N.A.

  
	
   

  	
  (a)(4)

  	
  N.A.

  
	
   

  	
  (a)(5)

  	
  7.10

  
	
   

  	
  (b)

  	
  7.10

  
	
   

  	
  (c)

  	
  N.A.

  
	
  311(a)

  	
  7.11

  
	
   

  	
  (b)

  	
  7.11

  
	
   

  	
  (c)

  	
  N.A.

  
	
  312(a)

  	
  2.05

  
	
   

  	
  (b)

  	
  12.03

  
	
   

  	
  (c)

  	
  12.03

  
	
  313(a)

  	
  7.06

  
	
   

  	
  (b)(2)

  	
  7.07

  
	
   

  	
  (c)

  	
  7.06; 12.02

  
	
   

  	
  (d)

  	
  7.06

  
	
  314(a)

  	
  4.03; 12.02

  
	
   

  	
  (b)

  	
  N.A.

  
	
   

  	
  (c)(1)

  	
  12.04

  
	
   

  	
  (c)(2)

  	
  12.04

  
	
   

  	
  (c)(3)

  	
  N.A.

  
	
   

  	
  (e)

  	
  12.05

  
	
   

  	
  (f)

  	
  N.A.

  
	
  315(a)

  	
  7.01

  
	
   

  	
  (b)

  	
  7.05, 12.02

  
	
   

  	
  (c)

  	
  7.01

  
	
   

  	
  (d)

  	
  7.01

  
	
   

  	
  (e)

  	
  6.11

  
	
  316(a) (last
  sentence)

  	
  2.09

  
	
   

  	
  (a)(1)(A)

  	
  6.05

  
	
   

  	
  (a)(1)(B)

  	
  6.04

  
	
   

  	
  (a)(2)

  	
  N.A.

  
	
   

  	
  (b)

  	
  6.07

  
	
   

  	
  (c)

  	
  2.12

  
	
  317(a)(1)

  	
  6.08

  
	
   

  	
  (a)(2)

  	
  6.09

  
	
   

  	
  (b)

  	
  2.04

  
	
  318(a)

  	
  12.01

  
	
   

  	
  (b)

  	
  N.A.

  
	
   

  	
  (c)

  	
  12.01

  
				



 






N.A. means not applicable.


*This Cross-Reference Table is not part of this
Supplemental Indenture.


 

















 


TABLE
OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
  ARTICLE 1.

  
	
  DEFINITIONS AND INCORPORATION

  
	
  BY REFERENCE

  
	
   

  
	
  Section 1.01

  	
  Definitions

  	
  1

  
	
  Section 1.02

  	
  Other Definitions

  	
  24

  
	
  Section 1.03

  	
  Incorporation by Reference of Trust
  Indenture Act

  	
  24

  
	
  Section 1.04

  	
  Rules of
  Construction

  	
  25

  
	
  Section 1.05

  	
  Relationship
  with Base Indenture

  	
  25

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  2.

  
	
  THE NOTES

  
	
   

  
	
  Section 2.01

  	
  Form and Dating

  	
  26

  
	
  Section 2.02

  	
  Execution
  and Authentication

  	
  26

  
	
  Section 2.03

  	
  Registrar
  and Paying Agent

  	
  27

  
	
  Section 2.04

  	
  Paying Agent
  to Hold Money in Trust

  	
  27

  
	
  Section 2.05

  	
  Holder Lists

  	
  27

  
	
  Section 2.06

  	
  Transfer and
  Exchange

  	
  27

  
	
  Section 2.07

  	
  Replacement
  Notes

  	
  31

  
	
  Section 2.08

  	
  Outstanding
  Notes

  	
  32

  
	
  Section 2.09

  	
  Treasury
  Notes

  	
  32

  
	
  Section 2.10

  	
  Temporary
  Notes

  	
  32

  
	
  Section 2.11

  	
  Cancellation

  	
  32

  
	
  Section 2.12

  	
  Defaulted
  Interest

  	
  33

  
	
  Section 2.13

  	
  CUSIP Number

  	
  33

  
	
  Section 2.14

  	
  Issuance of
  Additional Notes

  	
  33

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3.

  
	
  REDEMPTION AND PREPAYMENT

  
	
   

  
	
  Section 3.01

  	
  Notice to
  Trustee

  	
  34

  
	
  Section 3.02

  	
  Selection of
  Notes to Be Redeemed

  	
  34

  
	
  Section 3.03

  	
  Notice of
  Redemption

  	
  34

  
	
  Section 3.04

  	
  Effect of
  Notice of Redemption

  	
  35

  
	
  Section 3.05

  	
  Deposit of
  Redemption Price

  	
  35

  
	
  Section 3.06

  	
  Notes
  Redeemed in Part

  	
  36

  
	
  Section 3.07

  	
  Optional
  Redemption

  	
  36

  
	
  Section 3.08

  	
  Mandatory
  Redemption

  	
  36

  
	
  Section 3.09

  	
  Offer to
  Purchase by Application of Excess Proceeds

  	
  37

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4.

  
	
  COVENANTS

  
	
   

  
	
  Section 4.01

  	
  Payment of
  Notes

  	
  38

  
	
  Section 4.02

  	
  Maintenance
  of Office or Agency

  	
  39

  
	
  Section 4.03

  	
  Reports

  	
  39

  
	
  Section 4.04

  	
  Compliance
  Certificate

  	
  40

  
	
  Section 4.05

  	
  Taxes

  	
  40

  
	
  Section 4.06

  	
  Stay,
  Extension and Usury Laws

  	
  41

  
	
  Section 4.07

  	
  Restricted
  Payments

  	
  41

  
				



 


i

















 


	
  Section 4.08

  	
  Dividends
  and Other Payment Restrictions Affecting Restricted Subsidiaries

  	
  44

  
	
  Section 4.09

  	
  Incurrence
  of Indebtedness and Issuance of Disqualified and Preferred Stock

  	
  45

  
	
  Section 4.10

  	
  Asset Sales

  	
  48

  
	
  Section 4.11

  	
  Transactions
  With Affiliates

  	
  50

  
	
  Section 4.12

  	
  Liens

  	
  51

  
	
  Section 4.13

  	
  Business
  Activities

  	
  51

  
	
  Section 4.14

  	
  Corporate
  Existence

  	
  51

  
	
  Section 4.15

  	
  Offer to
  Purchase Upon Change of Control

  	
  52

  
	
  Section 4.16

  	
  Additional
  Guarantees

  	
  53

  
	
  Section 4.17

  	
  Payment for
  Consents

  	
  53

  
	
  Section 4.18

  	
  Sale and
  Leaseback Transactions

  	
  53

  
	
  Section 4.19

  	
  Designation
  of Restricted and Unrestricted Subsidiaries

  	
  54

  
	
  Section 4.20

  	
  Certain
  Covenants to Be Suspended Under Certain Conditions

  	
  54

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5.

  
	
  SUCCESSORS

  
	
   

  
	
  Section 5.01

  	
  Merger,
  Consolidation or Sale of Assets

  	
  54

  
	
  Section 5.02

  	
  Successor
  Corporation Substituted

  	
  55

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6.

  
	
  DEFAULTS AND REMEDIES

  
	
   

  
	
  Section 6.01

  	
  Events of
  Default

  	
  55

  
	
  Section 6.02

  	
  Acceleration

  	
  57

  
	
  Section 6.03

  	
  Other
  Remedies

  	
  57

  
	
  Section 6.04

  	
  Waiver of
  Past Defaults

  	
  58

  
	
  Section 6.05

  	
  Control by
  Majority

  	
  58

  
	
  Section 6.06

  	
  Limitation
  on Suits

  	
  58

  
	
  Section 6.07

  	
  Rights of
  Holders of Notes to Receive Payment

  	
  59

  
	
  Section 6.08

  	
  Collection
  Suit by Trustee

  	
  59

  
	
  Section 6.09

  	
  Trustee May
  File Proofs of Claim

  	
  59

  
	
  Section 6.10

  	
  Priorities

  	
  59

  
	
  Section 6.11

  	
  Undertaking
  for Costs

  	
  60

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7.

  
	
  TRUSTEE

  
	
   

  
	
  Section 7.01

  	
  Duties of
  Trustee

  	
  60

  
	
  Section 7.02

  	
  Rights of
  Trustee

  	
  61

  
	
  Section 7.03

  	
  Individual Rights
  of Trustee

  	
  62

  
	
  Section 7.04

  	
  Trustee’s
  Disclaimer

  	
  62

  
	
  Section 7.05

  	
  Notice of
  Defaults

  	
  63

  
	
  Section 7.06

  	
  Reports by
  Trustee to Holders of the Notes

  	
  63

  
	
  Section 7.07

  	
  Compensation
  and Indemnity

  	
  63

  
	
  Section 7.08

  	
  Replacement
  of Trustee

  	
  64

  
	
  Section 7.09

  	
  Successor
  Trustee by Merger, Etc.

  	
  65

  
	
  Section 7.10

  	
  Eligibility;
  Disqualification

  	
  65

  
	
  Section 7.11

  	
  Preferential
  Collection of Claims Against Company

  	
  65

  
	
  Section 7.12

  	
  Trustee’s
  Application for Instructions from the Company

  	
  65

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8.

  
	
  LEGAL DEFEASANCE AND COVENANT
  DEFEASANCE

  
	
   

  
	
  Section 8.01

  	
  Option to
  Effect Legal Defeasance or Covenant Defeasance

  	
  65

  



 


ii

















 


	
  Section 8.02

  	
  Legal
  Defeasance and Discharge

  	
  66

  
	
  Section 8.03

  	
  Covenant
  Defeasance

  	
  66

  
	
  Section 8.04

  	
  Conditions
  to Legal or Covenant Defeasance

  	
  66

  
	
  Section 8.05

  	
  Deposited
  Money and Government Securities to Be Held in Trust; Other Miscellaneous
  Provisions

  	
  67

  
	
  Section 8.06

  	
  Repayment to
  Company

  	
  68

  
	
  Section 8.07

  	
  Reinstatement

  	
  68

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9.

  
	
  AMENDMENT, SUPPLEMENT AND WAIVER

  
	
   

  
	
  Section 9.01

  	
  Without
  Consent of Holders of Notes

  	
  69

  
	
  Section 9.02

  	
  With Consent
  of Holders of Notes

  	
  70

  
	
  Section 9.03

  	
  Compliance
  With Trust Indenture Act

  	
  71

  
	
  Section 9.04

  	
  Revocation
  and Effect of Consents

  	
  71

  
	
  Section 9.05

  	
  Notation on
  or Exchange of Notes

  	
  71

  
	
  Section 9.06

  	
  Trustee to
  Sign Amendments, Etc.

  	
  71

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10.

  
	
  NOTE GUARANTEES

  
	
   

  
	
  Section
  10.01

  	
  Guarantee.

  	
  72

  
	
  Section
  10.02

  	
  Limitation
  on Guarantor Liability

  	
  73

  
	
  Section
  10.03

  	
  Execution
  and Delivery of Guarantee

  	
  73

  
	
  Section
  10.04

  	
  Guarantors
  May Consolidate, etc. on Certain Terms

  	
  73

  
	
  Section
  10.05

  	
  Releases
  Following Sale of Assets

  	
  74

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11.

  
	
  SATISFACTION AND DISCHARGE

  
	
   

  
	
  Section
  11.01

  	
  Satisfaction
  and Discharge

  	
  75

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12.

  
	
  MISCELLANEOUS

  
	
   

  
	
  Section
  12.01

  	
  Trust
  Indenture Act Controls

  	
  75

  
	
  Section
  12.02

  	
  Notices

  	
  76

  
	
  Section
  12.03

  	
  Communication
  by Holders of Notes with Other Holders of Notes

  	
  77

  
	
  Section
  12.04

  	
  Certificate
  and Opinion as to Conditions Precedent

  	
  77

  
	
  Section
  12.05

  	
  Statements
  Required in Certificate

  	
  77

  
	
  Section 12.06

  	
  Rules by Trustee
  and Agents

  	
  78

  
	
  Section
  12.07

  	
  Calculation
  of Foreign Currency Amounts

  	
  78

  
	
  Section
  12.08

  	
  No Personal
  Liability of Directors, Officers, Employees and Stockholders

  	
  78

  
	
  Section
  12.09

  	
  Governing
  Law; Waiver of Jury Trial

  	
  78

  
	
  Section
  12.10

  	
  Force
  Majeure

  	
  78

  
	
  Section
  12.11

  	
  No Adverse
  Interpretation of Other Agreements

  	
  78

  
	
  Section
  12.12

  	
  Successors

  	
  79

  
	
  Section
  12.13

  	
  Severability

  	
  79

  
	
  Section
  12.14

  	
  Counterpart
  Originals

  	
  79

  
	
  Section
  12.15

  	
  Table of
  Contents, Headings, Etc.

  	
  79

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  
	
   

  
	
  Exhibit A

  	
  FORM OF NOTE

  	
   

  
	
  Exhibit B

  	
  FORM OF NOTATION OF GUARANTEE

  	
   

  



 


iii

















 


	
  Exhibit C

  	
  FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED BY
  SUBSEQUENT GUARANTORS

  	
   

  



 


iv

















 


FIRST SUPPLEMENTAL INDENTURE dated as of March 27,
2006 by and among Ball Corporation, an Indiana corporation (the “Company”), the Guarantors (as defined
below) and The Bank of New York Trust Company, N.A., a national banking association,
as trustee (the “Trustee”).


 


The Company has heretofore executed and delivered to
the Trustee an indenture, dated as of March 27, 2006 (the “Base
Indenture”) providing for the issuance from time to time of one or
more series of the Company’s securities.


 


The Company and the Guarantors desire and have
requested the Trustee pursuant to Section 9.1 of the Base Indenture to join
with them in the execution and delivery of this Supplemental Indenture in order
to supplement the Base Indenture as, and to the extent set forth herein to provide
for the issuance and the terms of the Notes (as defined below).


 


Section 9.1 of the Base Indenture provides that the
Company and the Trustee, without the consent of any holders of the Company’s
Securities, may amend or waive certain terms and covenants in the Base
Indenture as permitted by Sections 2.1 and 2.2 thereof.


 


The execution and delivery of this Supplemental
Indenture has been duly authorized by a board resolution of the Company and
each of the Guarantors.


 


All conditions and requirements necessary to make this
Supplemental Indenture a valid, binding and legal instrument in accordance with
its terms have been performed and fulfilled by the parties hereto and the
execution and delivery thereof have been in all respects duly authorized by the
parties hereto.


 


The Company, the Guarantors and the Trustee agree as
follows for the benefit of each other and for the equal and ratable benefit of
the Holders (as defined herein) of the 6.625% Senior Notes due 2018 (the “Notes”):


 


ARTICLE 1.

DEFINITIONS AND INCORPORATION

BY REFERENCE


Section 1.01           Definitions.


 


“Acquired Debt”
means, with respect to any specified Person, Indebtedness, including
Disqualified Stock, of any other Person existing at the time such other Person
is merged with or into, becomes a Restricted Subsidiary of such specified
Person or is otherwise assumed by such specified Person in connection with an
acquisition of assets from such Person, whether or not such Indebtedness is
incurred in connection with, or in contemplation of, such other Person merging
with or into, or becoming a Restricted Subsidiary of, such specified Person or
the acquisition of assets from such person.


 


“Acquisitions”
means the acquisition by the Company of Alcan Bottles pursuant to the Asset
Purchase Agreement entered into on February 24, 2006 and the acquisition
by the Company of 100% of the capital stock of U.S. Can Corporation pursuant to
the Agreement and Plan of Merger entered into on February 14, 2006.


 


“Additional Assets”
means:


 


(1)           any
property or assets, other than Capital Stock, Indebtedness or rights to receive
payments over a period greater than 180 days, that are usable by the Company or
a Restricted Subsidiary in a Permitted Business; or


 


1

















 


(2)           the
Capital Stock of a Person that is at the time, or becomes, a Restricted
Subsidiary as a result of the acquisition of such Capital Stock by the Company
or another Restricted Subsidiary.


 


“Additional Notes” means any
Notes (other than the Initial Notes) issued under this Supplemental Indenture
in accordance with Sections 2.14 and 4.09 hereof, as part of the same series as
the Initial Notes.


 


“Affiliate”
of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such specified Person. For purposes of this definition, “control,” as used with
respect to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities, by agreement or
otherwise; provided, that
beneficial ownership of 10% or more of the Voting Stock of a Person will be
deemed to be in control. For purposes of this definition, the terms “controlling,”
“controlled by” and “under common control with” have correlative meanings.


 


“Agent”
means any Registrar, Paying Agent or co-registrar.


 


“Applicable Premium”
means, with respect to any Note on any redemption date, the greater of:


 


(1)                                  1.0%
of the principal amount of the Note; or


 


(2)                                  the
excess of:


 


(a)                                  the
present value at such redemption date of (i) the redemption price of the
Note at March 15, 2011, (such redemption price being set forth in the
table appearing under Section 3.07 hereof) plus (ii) all required interest
payments due on the Note through March 15, 2011, (excluding accrued but
unpaid interest to the redemption date), computed using a discount rate equal
to the Treasury Rate as of such redemption date plus 50 basis points; over


 


(b)                                 the
principal amount of the Note, if greater.


 


“Applicable
Procedures” means, with respect to any transfer or exchange of or
for beneficial interests in any Global Note, the rules and procedures of the
Depositary that apply to such transfer or exchange.


 


“Asset Sale”
means:


 


(1)           the
sale, lease, conveyance or other disposition of any assets or rights other than
in the ordinary course of business consistent with past practices; provided, that the sale, lease, conveyance
or other disposition of all or substantially all of the assets of the Company
and its Restricted Subsidiaries taken as a whole will be governed by the
provisions of this Supplemental Indenture described under Section 4.15 and/or
the provisions described under Section 5.01 hereof and not by the provisions of
Section 4.10 hereof; and


 


(2)           the
issuance or sale of Equity Interests in any of the Company’s Restricted
Subsidiaries, and in the case of either clause (1) or (2), whether in a single
transaction or series of related transactions (a) that have a fair market value
in excess of $20 million or (b) for Net Proceeds in excess of $20 million.


 


2

















 


Notwithstanding the preceding, none of the following
items will be deemed to be an Asset Sale:


 


(1)           a transfer
of assets or rights by the Company to a Restricted Subsidiary of the Company or
by a Restricted Subsidiary of the Company to the Company or another Restricted
Subsidiary of the Company;


 


(2)           an
issuance or sale of Equity Interests by a Restricted Subsidiary of the Company
to the Company or to another Restricted Subsidiary of the Company;


 


(3)           the
sale or lease of equipment, inventory, accounts receivable or other current
assets in the ordinary course of business;


 


(4)           the
sale or other disposition of cash or Cash Equivalents;


 


(5)           a
Restricted Payment that is not prohibited by Section 4.07 or a Permitted
Investment;


 


(6)           sales,
conveyances or other transfers of receivables and related assets to a
Securitization Entity or to another Person as contemplated by the definition of
“Qualified Securitization Transaction” in a Qualified Securitization
Transaction;


 


(7)           the
sale or disposition of obsolete, uneconomical, worn out or surplus property or
equipment;


 


(8)           the
surrender or waiver of contract rights or settlement, release or surrender of a
contract, tort or other litigation claim in the ordinary course of business;


 


(9)           the
granting of Liens not prohibited by this Supplemental Indenture;


 


(10)         any
exchange of like property pursuant to Section 1031 of the Internal Revenue Code
of 1986, as amended, for use in a Permitted Business;


 


(11)         the
lease, assignment or sublease of any real or personal property in the ordinary
course of business; and


 


(12)         any
sale of Equity Interests in, or Indebtedness or other securities of, an
Unrestricted Subsidiary.


 


“Attributable Debt”
in respect of a sale and leaseback transaction means, at the time of
determination, the present value of the obligation of the lessee for net rental
payments during the remaining term of the lease included in such sale and
leaseback transaction including any period for which such lease has been
extended or may, at the option of the lessor, be extended. Such present value
will be calculated using a discount rate equal to the rate of interest implicit
in such transaction, determined in accordance with GAAP.


 


“Ball Asia Pacific”
means Ball Asia Pacific Limited, a Hong Kong company, and its affiliates and
joint ventures.


 


“Bankruptcy Law”
means Title 11, U.S. Code or any similar federal or state law for the relief of
debtors.


 


3

















 


“Base Indenture” means has the meaning set forth in
the preamble to this Supplemental Indenture, as amended, supplemented or
otherwise modified from time to time in accordance with the terms thereof.


 


“Beneficial Owner”
has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the
Exchange Act, except that in calculating the beneficial ownership of any
particular “person,” as that term is used in Section 13(d)(3) of the Exchange
Act, such “person” will be deemed to have beneficial ownership of all
securities that such “person” has the right to acquire by conversion or
exercise of other securities, whether such right is currently exercisable or is
exercisable only upon the occurrence of a subsequent condition. The terms
“Beneficially Owns” and “Beneficially Owned” have a corresponding meaning.


 


“Board of Directors”
means:


 


(1)           with
respect to a corporation, the board of directors of the corporation or any
committee thereof duly authorized to act on behalf of such board;


 


(2)           with
respect to a partnership, the Board of Directors of the general partner of the
partnership;


 


(3)           with respect to a limited liability
company, the managing member or members or any controlling committee of
managing members or managers thereof; and


 


(4)           with
respect to any other Person, the board or committee of such Person serving a
similar function.


 


“Business Day”
means any day other than a Legal Holiday.


 


“Capital Lease
Obligation” means, at the time any determination thereof is to be
made, the amount of the liability in respect of a capital lease that would at
that time be required to be capitalized on a balance sheet in accordance with
GAAP and the Stated Maturity thereof will be the date of the last payment of
rent or any other amount due under such lease prior to the first date upon
which such lease may be prepaid by the lessee without payment of a penalty.


 


“Capital Stock”
means:


 


(1)           in
the case of a corporation, corporate stock;


 


(2)           in
the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents, however designated, of corporate
stock;


 


(3)           in
the case of a partnership or limited liability company, partnership or
membership interests, whether general or limited; and


 


(4)           any other interest or participation
that confers on a Person the right to receive a share of the profits and losses
of, or distributions of assets of, the issuing Person, but excluding from all
of the foregoing any debt securities convertible into Capital Stock, whether or
not such debt securities include any right of participation with Capital Stock.


 


“Cash Equivalents”
means:


 


4

















 


 


(1)           United
States dollars;


 


(2)           securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality of the United States government
having maturities of not more than one year from the date of acquisition;


 


(3)           certificates
of deposit and eurodollar time deposits with maturities of not more than one
year from the date of acquisition, bankers’ acceptances with maturities of not
more than one year from the date of acquisition and overnight bank deposits, in
each case, with any domestic commercial bank having capital and surplus in
excess of $500 million and a Thomson Bank Watch Rating of “B” or better;


 


(4)           repurchase
obligations with a term of not more than seven days for underlying securities
of the types described in clauses (2) and (3) above entered into with any
financial institution meeting the qualifications specified in clause (3) above;


 


(5)           commercial
paper having the highest rating obtainable from Moody’s, or one of the two
highest ratings from S&P and in each case maturing within six months after
the date of acquisition;


 


(6)           money
market funds at least 95% of the assets of which constitute Cash Equivalents of
the kinds described in clauses (1) through (5) of this definition; and


 


(7)           in
the case of any Foreign Subsidiary;


 


(a)                                  direct
obligations of the sovereign nation, or any agency thereof, in which such
Foreign Subsidiary is organized and is conducting business or in obligations
fully and unconditionally guaranteed by such sovereign nation, or any agency
thereof;


 


(b)                                 investments
of the type and maturity described in clauses (1) through (6) above of foreign
obligors, which investments or obligors have ratings described in such clauses
or equivalent ratings from comparable foreign rating agencies; or


 


(c)                                  investments
of the type and maturity described in clauses (1) through (6) above of foreign
obligors which investments or obligors are not rated as provided in such
clauses or in clause (b) above but which are, in the reasonable judgment of the
Company, comparable in investment quality to such investments and obligors, or
the direct or indirect parent of such obligors.


 


“Change of Control”
means the occurrence of any of the following:


 


(1)           the
sale, transfer, conveyance or other disposition, other than by way of merger or
consolidation, in one or a series of related transactions, of all or
substantially all of the assets of the Company and its Restricted Subsidiaries
taken as a whole to any “person,” as that term is used in Section 13(d)(3) of
the Exchange Act;


 


(2)           the
adoption of a plan relating to the liquidation or dissolution of the Company;


 


5

















 


(3)           the
consummation of any transaction, including, without limitation, any merger or
consolidation, the result of which is that any “person,” as defined above,
becomes the ultimate Beneficial Owner, directly or indirectly, of more than 50%
of the Voting Stock of the Company, measured by voting power rather than number
of shares;


 


(4)           the
first day on which a majority of the members of the Board of Directors of the
Company are not Continuing Directors; or


 


(5)           the
Company consolidates with, or merges with or into, any Person or sells,
assigns, conveys, transfers, leases or otherwise disposes of all or
substantially all of its assets to any Person, or any Person consolidates with,
or merges with or into, the Company, in any such event pursuant to a
transaction in which any of the outstanding Voting Stock of the Company is
converted into or exchanged for cash, securities or other property, other than
any such transaction where the Voting Stock of the Company outstanding
immediately prior to such transaction is converted into or exchanged for Voting
Stock (other than Disqualified Stock) of the surviving or transferee Person
constituting a majority of the outstanding shares of such Voting Stock of such
surviving or transferee Person (immediately after giving effect to such
issuance).


 


 “Company” means Ball Corporation, and any
and all successors thereto.


 


“Consolidated Cash
Flow” means, with respect to any specified Person for any period,
the Consolidated Net Income of such Person for such period plus:


 


(1)           an
amount equal to any extraordinary loss plus any net loss realized by such
Person or any of its Restricted Subsidiaries in connection with an Asset Sale,
to the extent such losses were deducted in computing such Consolidated Net
Income; plus


 


(2)           provision
for taxes based on income or profits of such Person and its Restricted
Subsidiaries for such period, to the extent that such provision for taxes was
deducted in computing such Consolidated Net Income; plus


 


(3)           consolidated
interest expense of such Person and its Restricted Subsidiaries for such
period, whether paid or accrued and whether or not capitalized, including,
without limitation, amortization of debt issuance costs and original issue
discount, non-cash interest payments, the interest component of any deferred
payment obligations, the interest component of all payments associated with
Capital Lease Obligations, imputed interest with respect to Attributable Debt,
commissions, discounts and other fees and charges incurred in respect of letter
of credit or bankers’ acceptance financings and receivables financings, and net
payments, if any, pursuant to Hedging Obligations, to the extent that any such
expense was deducted in computing such Consolidated Net Income; plus


 


(4)           depreciation,
amortization, including amortization of goodwill and other intangibles but
excluding amortization of prepaid cash expenses that were paid in a prior period,
and other non-cash expenses, excluding any such non-cash expense to the extent
that it represents an accrual of or reserve for cash expenses in any future
period, of such Person and its Restricted Subsidiaries for such period to the
extent that such depreciation, amortization and other non-cash expenses were
deducted in computing such Consolidated Net Income; minus


 


(5)           non-cash
items increasing such Consolidated Net Income for such period, other than items
that were accrued in the ordinary course of business,


 


6

















 


in each case, on a consolidated basis and determined
in accordance with GAAP.


 


“Consolidated
Indebtedness” means, with respect to any specified Person as of any
date, the sum, without duplication, of:


 


(1)                                  the
total amount of Indebtedness of such Person and its Restricted Subsidiaries; plus


 


(2)                                  the
total amount of Indebtedness of any other Person, to the extent that such
Indebtedness has been Guaranteed by, or is secured by a Lien on the assets of,
the referent Person or one or more of its Restricted Subsidiaries; plus


 


(3)                                  the
aggregate liquidation value of all Disqualified Stock of such Person and all
preferred stock of Restricted Subsidiaries of such Person,


 


in each case, determined on a consolidated basis in accordance with
GAAP.


 


“Consolidated Net
Income” means, with respect to any specified Person for any period,
the aggregate of the Net Income of such Person and its Restricted Subsidiaries
for such period, on a consolidated basis, determined in accordance with GAAP; provided, that:


 


(1)           the
Net Income (but not loss) of any Person (other than the Company) that is not a
Restricted Subsidiary or that is accounted for by the equity method of
accounting will be included only to the extent of the amount of dividends or
distributions paid in cash to the specified Person or a Restricted Subsidiary
of the Person;


 


(2)           the
Net Income of any Restricted Subsidiary will be excluded to the extent that the
declaration or payment of dividends or similar distributions by that Restricted
Subsidiary of that Net Income is not at the date of determination permitted
without any prior governmental approval, that has not been obtained or,
directly or indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Restricted Subsidiary or its stockholders;


 


(3)           the
Net Income of any Person acquired in a pooling of interests transaction for any
period prior to the date of such acquisition will be excluded; and


 


(4)           the
cumulative effect of a change in accounting principles will be excluded.


 


“Continuing
Directors” means, as of any date of determination, any member of the
Board of Directors of the Company who:


 


(1)           was
a member of such Board of Directors on the date of this Supplemental Indenture;
or


 


(2)           was
nominated for election or elected to such Board of Directors with the approval
of a majority of the Continuing Directors who were members of such Board at the
time of such nomination or election.


 


“Corporate Trust
Office of the Trustee” will be at the address of the Trustee
specified in Section 12.02 hereof or such other address as to which the Trustee
may give notice to the Company.


 


7

















 


“Credit Facilities”
means one or more debt facilities, including, without limitation, the Existing
Credit Facilities, or commercial paper facilities, in each case with banks,
investment funds or other lenders providing for revolving credit loans, term
loans, receivables financings, including through the sale of receivables to
such lenders or to special purpose entities formed to borrow from such lenders
against such receivables or letters of credit, in each case, as amended,
restated, modified, renewed, refunded, replaced or refinanced in whole or in
part from time to time.


 


“Custodian”
means the Trustee, as custodian with respect to the Notes in global form, or
any successor entity thereto.


 


“Default”
means any event that is, or with the passage of time or the giving of notice or
both would be, an Event of Default.


 


“Definitive Note”
means a certificated Note registered in the name of the Holder thereof and
issued in accordance with Section 2.06 hereof, substantially in the form of Exhibit
A hereto except that such Note will not bear the Global Note Legend.


 


“Depositary”
means, with respect to the Notes issuable or issued in whole or in part in
global form, the Person specified in Section 2.03 hereof as the Depositary with
respect to the Notes, and any and all successors thereto appointed as
depositary hereunder and having become such pursuant to the applicable
provision of this Supplemental Indenture.


 


“Designated Noncash
Consideration” means the fair market value of noncash consideration
received by the Company or one of its Restricted Subsidiaries in connection
with an Asset Sale that is so designated as Designated Noncash Consideration
pursuant to an Officers’ Certificate, setting forth the basis of such
valuation, executed by the principal executive officer and the principal
financial officer of the Company, less the amount of cash or Cash Equivalents
received in connection with a sale of such Designated Noncash Consideration.


 


“Disqualified Stock”
means any Capital Stock that, by its terms, or by the terms of any security
into which it is convertible or for which it is exchangeable, in each case at
the option of the holder of the security, or upon the happening of any event,
matures, excluding any maturity as the result of the optional redemption
thereof, or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or redeemable at the option of the holder, in whole or in part, on
or prior to the date on which the Notes mature, except to the extent that such
Capital Stock is solely redeemable with, or solely exchangeable for, any Equity
Interests of the Company that are not Disqualified Stock; provided, however,
that only the portion of the Capital Stock or other security which so matures,
is mandatorily redeemable or is so redeemable at the option of the holder prior
to such date will be deemed to be Disqualified Stock; provided  further
that if such Capital Stock or other security is issued to any employee or to
any plan for the benefit of employees of the Company or its Subsidiaries or by
any such plan to such employees, such Capital Stock or other security will not
constitute Disqualified Stock solely because it may be required to be
repurchased by the Company or any of its Subsidiaries in order to satisfy
applicable statutory or regulatory obligations or as a result of such
employee’s termination, death or disability. Notwithstanding the preceding
sentence, any Capital Stock that would constitute Disqualified Stock solely
because the holders of the Capital Stock have the right to require the Company
to repurchase such Capital Stock upon the occurrence of a change of control or
an asset sale will not constitute Disqualified Stock if the terms of such
Capital Stock provide that the Company may not repurchase or redeem any such
Capital Stock pursuant to such provisions unless such repurchase or redemption
complies with Section 4.07 hereof.


 


8

















 


“Domestic
Subsidiary” means a Subsidiary that is formed under the laws of the
United States or any state of the United States or the District of Columbia or
that guarantees or otherwise provides direct credit support for any
Indebtedness of the Company or its Domestic Subsidiaries.


 


“Equity Interests”
means Capital Stock and all warrants, options or other rights to acquire
Capital Stock, but excluding any debt security that is convertible into, or
exchangeable for, Capital Stock.


 


“Equity Offering”
means:


 


(1)           an
offering or sale of Capital Stock, other than Disqualified Stock, of the Company;
or


 


(2)           the
contribution of cash to the Company as an equity capital contribution, other
than in respect of Disqualified Stock.


 


“Exchange Act”
means the Securities Exchange Act of 1934, as amended.


 


“Excluded
Subsidiary” means each of the following Subsidiaries of the Company:
Ball Corporation, a Nevada corporation; Ball Glass Containers, Inc., a Delaware
corporation; Ball Metal Container Corporation, an Indiana corporation; Heekin
Can, Inc., a Colorado corporation; Ball Asia Services Limited, a Delaware
corporation; Ball Glass Container Corporation, a Delaware corporation; Ball
Holdings Corp., a Delaware corporation and Ball Technology Services
Corporation, a California corporation, together with such other Subsidiaries of
the Company as may from time to time be designated by the Company as “Excluded
Subsidiaries” pursuant to an Officers’ Certificate delivered to the Trustee; provided, that each such Subsidiary will
be an Excluded Subsidiary only if and only for so long as:


 


(1)           the
aggregate of the net sales of all such Subsidiaries will not exceed $10 million
in any twelve-month period; and


 


(2)           the
aggregate of the assets, including capitalization, of all such Subsidiaries as
of any date will not exceed $10 million.


 


“Existing Credit
Facilities” means that certain credit agreement, dated
October 13, 2005, as amended.


 


“Existing
Indebtedness” means Indebtedness of the Company, the Company’s
Restricted Subsidiaries and U.S. Can Corporation and its Subsidiaries, other
than Indebtedness under Credit Facilities, in existence on the date of this
Supplemental Indenture.


 


“Existing Notes”
means the Existing Senior Notes.


 


“Existing Senior
Notes” means up to $550 million of the Company’s 6 7/8% Senior Notes
due 2012.


 


“Fixed Charge
Coverage Ratio” means with respect to any specified Person for any
period, the ratio of the Consolidated Cash Flow of such Person and its
Restricted Subsidiaries for such period to the Fixed Charges of such Person and
its Restricted Subsidiaries for such period. In the event that the specified
Person or any of its Restricted Subsidiaries incurs, assumes, Guarantees,
repays, repurchases or redeems any Indebtedness (other than ordinary working
capital borrowings) or issues, repurchases or redeems preferred stock
subsequent to the commencement of the period for which the Fixed Charge


 


9

















 


Coverage Ratio is being
calculated and on or prior to the date on which the event for which the
calculation of the Fixed Charge Coverage Ratio is made (the “Calculation Date”), then the Fixed Charge Coverage Ratio
will be calculated giving pro forma effect to such incurrence, assumption,
Guarantee, repayment, repurchase or redemption of Indebtedness, or such
issuance, repurchase or redemption of preferred stock, and the use of the
proceeds therefrom as if the same had occurred at the beginning of the
applicable four-quarter reference period.


 


In addition, for purposes of calculating the Fixed
Charge Coverage Ratio:


 


(1)           acquisitions
that have been made by the specified Person or any of its Restricted
Subsidiaries, including through mergers or consolidations and including any
related financing transactions, during the four-quarter reference period or
subsequent to such reference period and on or prior to the Calculation Date
will be deemed to have occurred on the first day of the four-quarter reference
period and Consolidated Cash Flow for such reference period will be calculated
without giving effect to clause (3) of the proviso set forth in the definition
of Consolidated Net Income;


 


(2)           the
Consolidated Cash Flow attributable to discontinued operations, as determined
in accordance with GAAP, and operations or businesses disposed of prior to the
Calculation Date, will be excluded; and


 


(3)           the
Fixed Charges attributable to discontinued operations, as determined in
accordance with GAAP, and operations or businesses disposed of prior to the
Calculation Date, will be excluded, but only to the extent that the obligations
giving rise to such Fixed Charges will not be obligations of the specified
Person or any of its Restricted Subsidiaries following the Calculation Date.


 


“Fixed Charges”
means, with respect to any specified Person for any period, the sum, without
duplication, of:


 


(1)           the
consolidated interest expense of such Person and its Restricted Subsidiaries
for such period, whether paid or accrued, including, without limitation, to the
extent properly characterized as interest expense in accordance with GAAP,
amortization of debt issuance costs and original issue discount, non-cash
interest payments, the interest component of any deferred payment obligations,
the interest component of all payments associated with Capital Lease
Obligations, imputed interest with respect to Attributable Debt, commissions,
discounts and other fees and charges incurred in respect of letter of credit or
bankers’ acceptance financings, and net payments, if any, pursuant to Hedging
Obligations;


 


(2)           the
consolidated interest of such Person and its Restricted Subsidiaries that was
capitalized during such period;


 


(3)           any
interest expense on Indebtedness of another Person that is Guaranteed by such
Person or one of its Restricted Subsidiaries or secured by a Lien on assets of
such Person or one of its Restricted Subsidiaries, whether or not such
Guarantee or Lien is called upon; and


 


(4)           all
dividend payments, whether or not in cash, on any series of preferred stock of
such Person or any of its Restricted Subsidiaries, other than dividends on
Equity Interests payable solely in Equity Interests of the Company, other than
Disqualified Stock, or to the Company or a Restricted Subsidiary of the
Company.


 


10

















 


“Foreign
Subsidiaries” means Subsidiaries of the Company that are not
Domestic Subsidiaries.


 


“GAAP”
means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board and such other statements by such other entity as
have been approved by a significant segment of the accounting profession, which
are applicable as of the date of this Supplemental Indenture.


 


“Global Note Legend”
means the legend set forth in Section 2.06(f), which is required to be placed
on all Global Notes issued under this Supplemental Indenture.


 


“Global Notes”
means, individually and collectively, each of the Global Notes, in the form of Exhibit
A hereto issued in accordance with Section 2.01 hereof.


 


“Government
Securities” means direct obligations of, or obligations guaranteed
by, the United States of America, and the payment for which the United States
pledges its full faith and credit.


 


“Guarantee”
means a guarantee, other than by endorsement of negotiable instruments for
collection in the ordinary course of business, direct or indirect, in any
manner including, without limitation, by way of a pledge of assets or through
letters of credit or reimbursement agreements in respect thereof, of all or any
part of any Indebtedness.


 


“Guarantors”
means:


 


(1)           each
of Ball Aerospace & Technologies Corp., a Delaware corporation, Ball Metal
Beverage Container Corp., a Colorado corporation, Ball Metal Food Container
Corp., a Delaware corporation, Ball Metal Packaging Sales Corp., a Colorado
corporation, Ball Packaging Corp., a Colorado corporation, Ball Plastic
Container Corp., a Colorado corporation, Ball Technologies Holdings Corp., a
Colorado corporation, Latas de Aluminio Ball, Inc., a Delaware corporation,
Ball Pan-European Holdings, Inc., a Delaware corporation, BG Holdings I, Inc.,
a Delaware corporation, BG Holdings II, Inc., a Delaware corporation, Efratom
Holding, Inc., a Colorado corporation, Metal Packaging International, Inc., a
Colorado corporation, Ball Aerosol and Specialty Container Corp., a Delaware
corporation, Ball Delaware Holdings, LLC, a Delaware limited liability company,
Ball Metal Food Container, LLC, a Delaware limited liability company and any
other Domestic Subsidiary of the Company as of the date of this Supplemental
Indenture (other than Ball Capital Corp., Ball Asia Pacific, any other
Unrestricted Subsidiary and the Excluded Subsidiaries); and


 


(2)           any
other Subsidiary of the Company that executes a supplemental indenture in the
form of Exhibit C and becomes a Guarantor in accordance with the
provisions of this Supplemental Indenture;


 


and their respective successors and assigns.


 


“Hedging
Counterparty” means, with respect to any Hedging Obligations, any
counterparty thereto, at the time such Hedging Obligations are initially
incurred, that is a holder, or an Affiliate thereof, of Indebtedness under any
Credit Facilities. For clarification, such counterparty (and its successors and
assigns) will be deemed a Hedging Counterparty even if it or its Affiliate
ceases to be a holder of Indebtedness under any Credit Facilities for any
reason.


 


11

















 


“Hedging
Obligations” means, with respect to any specified Person, the net
payment Obligations of such Person under:


 


(1)           interest
rate swap agreements, interest rate cap agreements and interest rate collar
agreements; and


 


(2)           other
agreements or arrangements in respect of such Person’s exposure to fluctuations
in commodity prices, currency exchange rates or interest rates and, in each
case, not entered into for speculative purposes.


 


“Holder”
means a Person in whose name a Note is registered.


 


“Incur”
means, to directly or indirectly, create, incur, issue, assume, guarantee or
otherwise become directly or indirectly liable, contingently or otherwise. The
term “Incurrence” has a correlative meaning. For the avoidance of doubt the
Incurrence of Indebtedness by a Subsidiary of a Person will not be deemed to be
an indirect Incurrence of Indebtedness by the referent Person.


 


 “Indebtedness” means, with respect to any
specified Person, any indebtedness of such Person, whether or not contingent:


 


(1)           in
respect of borrowed money;


 


(2)           evidenced
by bonds, notes, debentures or similar instruments or letters of credit, or
reimbursement agreements in respect thereof;


 


(3)           in
respect of banker’s acceptances;


 


(4)           representing
Capital Lease Obligations;


 


(5)           representing
the balance deferred and unpaid of the purchase price of any property, except
any such balance that constitutes an accrued expense or trade payable; or


 


(6)           representing
any Hedging Obligations,


 


if and to the extent any of the preceding items, other
than letters of credit and Hedging Obligations, would appear as a liability
upon a balance sheet of the specified Person prepared in accordance with GAAP.
In addition, the term “Indebtedness” includes all Indebtedness of others
secured by a Lien on any asset of the specified Person, whether or not such
Indebtedness is assumed by the specified Person, and, to the extent not
otherwise included, the Guarantee by the specified Person of any Indebtedness
of any other Person or any liability of any person, whether or not contingent
and whether or not it appears on the balance sheet of such Person.


 


The amount of any Indebtedness outstanding as of any
date will be:


 


(1)           the
accreted value of the Indebtedness, in the case of any Indebtedness that does
not require the current payment of interest;


 


(2)           the
principal amount of the Indebtedness in the case of any other Indebtedness; and


 


12

















 


(3)           in respect of Indebtedness of another
Person secured by a Lien on the assets of the specified Person, the lesser of:


 


(a)           the
fair market value of such assets at the date of determination; and


 


(b)           the
amount of the Indebtedness of the other Person.


 


“Indenture”
means the Base Indenture, as supplemented by this Supplemental Indenture,
governing the Notes, in each case, as amended, supplemented or restated from
time to time.


 


“Indirect
Participant” means a Person who holds a beneficial interest in a
Global Note through a Participant.


 


“Initial Notes” means the first
$450 million  aggregate principal amount
of Notes issued under this Supplemental Indenture on the date hereof.


 


“Investments”
means, with respect to any Person, all investments by such Person in other
Persons, including Affiliates, in the form of loans, including Guarantees of
Indebtedness or other Obligations, advances or capital contributions, excluding
commission, travel, entertainment, moving and similar advances to officers and
employees made in the ordinary course of business, prepaid expenses and
accounts receivable, purchases or other acquisitions for consideration of
Indebtedness, Equity Interests or other securities, together with all items
that are or would be classified as investments on a balance sheet prepared in
accordance with GAAP. If the Company or any Restricted Subsidiary of the
Company sells or otherwise disposes of any Equity Interests of any direct or
indirect Restricted Subsidiary of the Company such that, after giving effect to
any such sale or disposition, such Person is no longer a direct or indirect
Restricted Subsidiary of the Company, the Company or such Restricted
Subsidiary, as the case may be, will be deemed to have made an Investment on
the date of any such sale or disposition equal to the fair market value of the
Equity Interests of such Restricted Subsidiary that were not sold or disposed
of in an amount determined as provided in the final paragraph of Section 4.07
hereof.


 


“Legal Holiday”
means a Saturday, a Sunday or a day on which banking institutions in the City
of New York, the city in which the principal office of the Trustee is located
or at a place of payment are authorized by law, regulation or executive order
to remain closed. If a payment date is a Legal Holiday at a place of payment,
payment may be made at that place on the next succeeding day that is not a
Legal Holiday, and no interest will accrue on such payment for the intervening
period.


 


“Leverage Ratio”
means, with respect to any specified Person as of any date, the ratio of
(a) the Consolidated Indebtedness of the Company as of such date to
(b) the Consolidated Cash Flow of the Company for the four most recent
full fiscal quarters ending immediately prior to such date for which internal
financial statements are available, determined as provided below.


 


For purposes of calculating the Leverage Ratio:


 


(1)                                  acquisitions
that have been made by the specified Person or any of its Restricted
Subsidiaries, including through mergers or consolidations and including any
related financing transactions, during the four-quarter reference period or
subsequent to such reference period and on or prior to the Calculation Date
will be deemed to have occurred on the first day of the four-quarter reference
period and Consolidated Cash Flow for such reference period will be calculated
without giving effect to clause (3) of the proviso set forth in the
definition of Consolidated Net Income; and


 


13

















 


(2)                                  the
Consolidated Cash Flow attributable to discontinued operations, as determined
in accordance with GAAP, and operations or businesses disposed of prior to the
Calculation Date, will be excluded.


 


“Lien”
means, with respect to any asset, any mortgage, lien, pledge, charge, security
interest or encumbrance of any kind in respect of such asset, whether or not
filed, recorded or otherwise perfected under applicable law, including any
conditional sale or other title retention agreement or any lease in the nature
thereof; provided that in no
event will an operating lease be deemed to constitute a Lien.


 


“Limited Originator
Recourse” means a reimbursement obligation to the Company or a
Restricted Subsidiary in connection with a drawing on a letter of credit,
revolving loan commitment, cash collateral account or other such credit
enhancement issued to support Indebtedness of a Securitization Entity under a
facility for the financing of trade receivables; provided, that the available amount of any such form of
credit enhancement at any time will not exceed 10% of the principal amount of
such Indebtedness at such time.


 


“Net Income”
means, with respect to any specified Person, the net income or loss of such Person,
determined in accordance with GAAP and before any reduction in respect of
preferred stock dividends, excluding, however:


 


(1)           any
gain or loss, together with any related provision for taxes on such gain or
loss, realized in connection with the disposition of any securities by such
Person or any of its Restricted Subsidiaries or the extinguishment of any
Indebtedness of such Person or any of its Restricted Subsidiaries;


 


(2)           any
extraordinary gain or loss, together with any related provision for taxes on
such extraordinary gain or loss; and


 


(3)           any
one-time noncash charges (including legal, accounting and debt issuance costs)
resulting from the Transactions.


 


“Net Proceeds”
means the aggregate cash proceeds or Cash Equivalents received by the Company
or any of its Restricted Subsidiaries in respect of any Asset Sale, including,
without limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale, net of all costs relating to
such Asset Sale, including, without limitation, legal, accounting, investment
banking and brokers fees, and sales and underwriting commissions, and any
relocation expenses incurred as a result thereof, taxes paid or payable as a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements), and amounts required to be
applied to the repayment of Indebtedness, other than Indebtedness under a
Credit Facility secured by a Lien on the asset or assets that were the subject of
such Asset Sale and any reserve for adjustment in respect of the sale price of
such asset or assets established in accordance with GAAP.


 


“Non-Recourse Debt”
means Indebtedness:


 


(1)           as
to which neither the Company nor any of its Restricted Subsidiaries, other than
a Securitization Entity, if applicable, (a) provides credit support of any
kind, including any undertaking, agreement or instrument that would constitute
Indebtedness, (b) is directly or indirectly liable as a guarantor or otherwise
or (c) constitutes the lender;


 


(2)           no
default with respect to which, including any rights that the holders of the
Indebtedness may have to take enforcement action against an Unrestricted
Subsidiary, would


 


14

















 


permit upon notice, lapse
of time or both any holder of any other Indebtedness, other than the Notes, of
the Company or any of its Restricted Subsidiaries to declare a default on such
other Indebtedness or cause the payment of the Indebtedness to be accelerated or
payable prior to its stated maturity; and


 


(3)           as
to which the lenders have been notified in writing that they will not have any
recourse to the stock or assets of the Company or any of its Restricted
Subsidiaries, other than a Securitization Entity, if applicable.


 


“Non-U.S. Person”
means a Person who is not a U.S. Person.


 


“Notes”
has the meaning assigned to it in the preamble to this Supplemental Indenture.
The Initial Notes and the Additional Notes will be treated as a single class
for all purposes under this Supplemental Indenture, and unless the context
otherwise requires, all references to the Notes will include the Initial Notes
and any Additional Notes.


 


“Obligations”
means any principal, premium, if any, interest, including interest accruing on
or after the filing of any petition in bankruptcy or for reorganization
relating to the Company or its Restricted Subsidiaries whether or not a claim
for post-filing interest is allowed in such proceeding, penalties, fees,
charges, expenses, indemnifications, reimbursement obligations, damages,
including liquidated damages, guarantees and other liabilities or amounts
payable under the documentation governing any Indebtedness or in respect
thereof.


 


“Officer”
means, with respect to any Person, the Chairman of the Board, the Chief
Executive Officer, the President, the Chief Operating Officer, the Chief
Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the
Secretary or any Vice-President of such Person.


 


“Officers’
Certificate” means a certificate signed on behalf of the Company by
two Officers of the Company, one of whom must be a vice-president, the
principal financial officer or the principal accounting officer of the Company,
that meets the requirements of Sections 12.04 and 12.05 hereof.


 


“Opinion of Counsel”
means an opinion from legal counsel who is acceptable to the Trustee, that
meets the requirements of Sections 12.04 and 12.05 hereof. The counsel may be
an employee of or counsel to the Company, any Subsidiary of the Company or the
Trustee.


 


“Participant”
means, with respect to the Depositary, a Person who has an account with the
Depositary.


 


“Permitted Business”
means the lines of business conducted by the Company and its Restricted
Subsidiaries on the date of this Supplemental Indenture and businesses
substantially similar, related or incidental thereto or reasonable extensions
thereof.


 


“Permitted
Investments” means:


 


(1)           any
Investment in the Company or in a Restricted Subsidiary of the Company;


 


(2)           any
Investment in Cash Equivalents;


 


(3)           any
Investment by the Company or any Restricted Subsidiary of the Company in a
Person engaged in a Permitted Business, if as a result of such Investment:


 


15

















 


(a)                                  such
Person becomes a Restricted Subsidiary of the Company; or


 


(b)                                 such
Person is merged, consolidated or amalgamated with or into, or transfers or
conveys substantially all of its assets to, or is liquidated into, the Company
or a Restricted Subsidiary of the Company;


 


(4)           any
Investment made as a result of the receipt of non-cash consideration from an
Asset Sale that was made pursuant to and in compliance with Section 4.10 hereof
(including, without limitation, any sale or other disposition of all or a
portion of the business constituting the aerospace and technologies segment of
the Company) or any other disposition of assets not constituting an Asset Sale;


 


(5)           any
Investment made in exchange for the issuance of Equity Interests, other than
Disqualified Stock, of the Company;


 


(6)           other
Investments in any Person having an aggregate fair market value, measured on
the date each such Investment was made and without giving effect to subsequent
changes in value, when taken together with all other Investments made pursuant
to this clause (6) since the date of this Supplemental Indenture not to exceed
2.5% of Total Assets;


 


(7)           Hedging
Obligations;


 


(8)           any
Investment by the Company or a Restricted Subsidiary of the Company in a
Securitization Entity or any Investment by a Securitization Entity in any other
Person in connection with a Qualified Securitization Transaction; provided, that any Investment in a
Securitization Entity is in the form of a Purchase Money Note or an Equity
Interest;


 


(9)           any
Investment existing on the date of this Supplemental Indenture and any
amendment, modification, restatement, supplement, extension, renewal,
refunding, replacement, or refinancing, in whole or in part, thereof;


 


(10)         any
Investments received in satisfaction of judgments, settlements of debt or
compromises of obligations incurred in the ordinary course of business,
including pursuant to any plan of reorganization or similar arrangement upon
the bankruptcy or insolvency of any trade creditor or customer;


 


(11)         any
Investment in Ball Asia Pacific, the proceeds of which are used to permanently
repay Indebtedness of Ball Asia Pacific in an amount up to the amount that was
outstanding on August 10, 1998, plus any
interest, prepayment penalty and reasonable costs associated with such
repayment;


 


(12)         Investments
in Permitted Joint Ventures of up to $150 million outstanding at any time;


 


(13)         receivables
owing to the Company or any Restricted Subsidiary of the Company if created or
acquired in the ordinary course of business and payable or dischargeable in
accordance with customary trade terms; provided
that such trade terms may include such concessionary trade terms as
the Company or any such Restricted Subsidiary deems reasonable under the
circumstances;


 


16

















 


(14)         Investments
deemed to have been made as a result of the acquisition of a Person that at the
time of such acquisition held instruments constituting Investments that were
not acquired in contemplation of the acquisition of such Person;


 


(15)         Investments
in prepaid expenses and lease, utility and workers’ compensation performance
and other similar deposits;


 


(16)         commission,
payroll, travel and similar advances to employees in the ordinary course of
business;


 


(17)         Investments
consisting of intercompany indebtedness not prohibited under this Supplemental
Indenture;


 


(18)         Investments
consisting of the licensing or contribution of intellectual property pursuant
to joint marketing arrangements with other Persons;


 


(19)         Investments
consisting of purchases and acquisitions of inventory, supplies, materials and
equipment or purchases of contract rights or licenses or leases of intellectual
property, in each case in the ordinary course of business; and


 


(20)         other
Investments in any Person other than an Affiliate of the Company having an
aggregate fair market value (measured on the date each such Investment was made
and without giving effect to subsequent changes in value), when taken together
with all other Investments made pursuant to this clause (20) that are at
the time outstanding not to exceed $150 million.


 


“Permitted Joint
Venture” means an entity characterized as a joint venture, however
structured, engaged in a Permitted Business and in which the Company or a
Restricted Subsidiary (a) owns at least 40% of the ownership interest or (b)
has a right to receive at least 40% of the profits or distributions; provided that such joint venture is not a
Subsidiary of the Company.


 


“Permitted Liens”
means:


 


(1)           Liens
on assets, including, without limitation, the capital stock of a Subsidiary, of
the Company or any of its Restricted Subsidiaries to secure Indebtedness under
any Credit Facilities that is permitted by the terms of this Supplemental
Indenture to be incurred, whether pursuant to the terms of the first or second paragraph
of Section 4.09 hereof or otherwise;


 


(2)           Liens
on the assets, including, but not limited to, the capital stock of a
Subsidiary, of the Company or any of its Restricted Subsidiaries to secure
Indebtedness in respect of any Hedging Obligations to any Hedging Counterparty,
but only to the extent that such Hedging Obligations relate to Indebtedness
that is permitted by the terms of this Supplemental Indenture to be incurred;


 


(3)           Liens
on property or assets of a Person existing at the time such Person is acquired
by, or merged into or consolidated with, the Company or any Restricted
Subsidiary of the Company; provided,
that such Liens were not put in place in contemplation thereof and do not
extend to any property or assets other than those of the Person acquired by, or
merged into or consolidated with, the Company or any Restricted Subsidiary of
the Company;


 


17

















 


(4)           Liens
on property or assets existing at the time of acquisition thereof by the
Company or any Restricted Subsidiary of the Company, provided, that such Liens were not put in place in
contemplation thereof and only extend to the property or assets so acquired;


 


(5)           Liens
existing on the date of this Supplemental Indenture;


 


(6)           Liens
to secure any Permitted Refinancing Indebtedness incurred to refinance any
Indebtedness secured by any Lien referred to in the foregoing clauses (1)
through (5), as the case may be, at the time the original Lien became a
Permitted Lien;


 


(7)           Liens
in favor of the Company or any Restricted Subsidiary of the Company;


 


(8)           Liens
to secure Indebtedness permitted by clause (xvi) of the definition of
“Permitted Debt;”


 


(9)           Liens
incurred in the ordinary course of business of the Company or any Restricted
Subsidiary of the Company with respect to obligations that do not exceed $50
million in the aggregate at any one time outstanding and that (a) are not
incurred in connection with the borrowing of money or the obtaining of advances
or credit, other than trade credit in the ordinary course of business, and (b)
do not in the aggregate materially detract from the value of the property or
materially impair the use thereof in the operation of business by the Company
or such Restricted Subsidiary;


 


(10)         Liens
incurred or deposits made to secure the performance of statutory or regulatory
obligations, bankers’ acceptances, surety or appeal bonds, performance bonds,
deposits to secure the performance of tenders, bids, trade contracts,
government contracts, import duties, payment of rent, performance, letters of
credit and return-of-money bonds, leases or licenses or other obligations of a
like nature incurred in the ordinary course of business, including, without
limitation, landlord Liens on leased properties;


 


(11)         Liens
for taxes, assessments or governmental charges or claims that are not yet
delinquent, that are not subject to penalties or interest for non-payment or
that are being contested in good faith by appropriate proceedings; provided, that any reserve or other
appropriate provision as will be required to conform with GAAP will have been
made therefor;


 


(12)         Liens
to secure Indebtedness, including Capital Lease Obligations, permitted by
clause (iv) of the definition of “Permitted Debt;”


 


(13)         carriers’,
warehousemen’s, mechanics’, landlords’, materialmen’s, repairmen’s, suppliers’
or other like Liens arising in the ordinary course of business and deposits
made to obtain the release of such liens and with respect of obligations not
overdue for a period in excess of 60 days or which are being contested in good
faith by appropriate proceedings; provided,
that any reserve or other appropriate provision as will be required to conform
with GAAP will have been made therefor;


 


(14)         easements,
rights-of-way, zoning ordinances and similar charges, restrictions, exceptions
or other irregularities, reservations of, or rights of others for: licenses,
sewers, electric lines, telegraph and telephone lines, and other similar
encumbrances or title defects incurred, or leases or subleases granted to
others, in the ordinary course of business, which do not in any case materially
detract from the value of the property subject thereto or do not materially
interfere with


 


18

















 


the ordinary conduct of
the business of the Company and its Restricted Subsidiaries taken as a whole;


 


(15)         Liens
in favor of customs and revenue authorities to secure payment of customs duties
in connection with the importation of goods in the ordinary course of business
and other similar Liens arising in the ordinary course of business;


 


(16)         leases
or subleases granted to third Persons not materially interfering with the
ordinary course of business of the Company and its Restricted Subsidiaries
taken as a whole;


 


(17)         Liens,
other than any Lien imposed by ERISA or any rule or regulation promulgated
thereunder, incurred or pledges or deposits made in the ordinary course of
business in connection with workers’ compensation, unemployment insurance and
other types of social security;


 


(18)         deposits
made in the ordinary course of business to secure liability to insurance
carriers;


 


(19)         Liens
for purchase money obligations, including refinancings thereof permitted under
Section 4.09 hereof, provided,
that (a) the Indebtedness secured by any such Lien is permitted under Section
4.09 hereof and (b) any such Lien encumbers only the asset so purchased;


 


(20)         any
attachment or judgment Lien not constituting an Event of Default under clause
(i) of Section 6.01 hereof and Liens arising from the rendering of a judgment
that is not a final judgment or order against the Company or any Restricted
Subsidiary with respect to which the Company or such Restricted Subsidiary is
then proceeding with an appeal or other proceeding for review or in connection
with surety or appeal bonds in connection with such attachment or judgment;


 


(21)         any
interest or title of a lessor or sublessor under any operating lease or capital
lease;


 


(22)         Liens
on assets transferred to a Securitization Entity or on assets of a Securitization
Entity, in either case incurred in connection with a Qualified Securitization
Transaction;


 


(23)         Liens
under licensing agreements for use of intellectual property entered into in the
ordinary course of business;


 


(24)         Liens
arising from Uniform Commercial Code financing statement filings regarding
operating leases entered into by the Company and its Restricted Subsidiaries in
the ordinary course of business; and


 


(25)         Rights
of set-off of banks and other Persons.


 


“Permitted
Refinancing Indebtedness” means any Indebtedness of the Company or
any of its Restricted Subsidiaries issued in exchange for, or the net proceeds
of which are used to extend, refinance, renew, replace, defease or refund other
Indebtedness of the Company or any of its Restricted Subsidiaries, other than
intercompany Indebtedness; provided,
that:


 


19

















 


(1)           the
principal amount, or accreted value, if applicable, of such Permitted
Refinancing Indebtedness does not exceed the principal amount, or accreted
value, if applicable, of the Indebtedness extended, refinanced, renewed,
replaced, defeased or refunded, plus all accrued interest and premiums on the
Indebtedness and the amount of all fees, expenses, prepayment penalties and
premiums incurred in connection therewith;


 


(2)           such
Permitted Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and has a Weighted Average Life to Maturity equal to or
greater than the Weighted Average Life to Maturity of, the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded;


 


(3)           if
the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded is subordinated in right of payment to the Notes, such Permitted
Refinancing Indebtedness has a final maturity date later than the final
maturity date of, and is subordinated in right of payment to, the Notes on
terms at least as favorable to the holders of Notes as those contained in the
documentation governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; and


 


(4)           such
Indebtedness is incurred either by the Company or by the Restricted Subsidiary
who is the obligor on the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded.


 


“Person”
means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, limited liability
company or government or any agency or political subdivision thereof or any
other entity.


 


“Purchase Money
Note” means a promissory note of a Securitization Entity evidencing
a line of credit, which may be irrevocable, from the Company or any Restricted
Subsidiary of the Company in connection with a Qualified Securitization
Transaction, which note will be repaid from cash available to the
Securitization Entity, other than amounts required to be established as
reserves pursuant to agreements, amounts paid to investors in respect of
interest, principal and other amounts owing to such investors and amounts paid
in connection with the purchase of newly generated receivables.


 


“Qualified
Securitization Transaction” means any transaction or series of
transactions pursuant to which the Company or any of its Restricted
Subsidiaries may sell, convey or otherwise transfer to (a) a Securitization
Entity, in the case of a transfer by the Company or any of its Restricted
Subsidiaries, and (b) any other Person, in case of a transfer by a
Securitization Entity, or may grant a security interest in, any receivables,
whether now existing or arising or acquired in the future, of the Company or
any of its Restricted Subsidiaries, and any assets related thereto including,
without limitation, all collateral securing such receivables, all contracts and
contract rights and all Guarantees or other obligations in respect of such
receivables, proceeds of such receivables and other assets, including contract
rights, which are customarily transferred or in respect of which security
interests are customarily granted in connection with asset securitization
transactions involving receivables, collectively, “transferred assets”; provided, that, in the case of any such
transfer by the Company or any of its Restricted Subsidiaries, the transferor
receives cash or Purchase Money Notes in an amount which, when aggregated with
the cash and Purchase Money Notes received by the Company and its Restricted
Subsidiaries upon all other such transfers of transferred assets during the 90
days preceding such transfer, is at least equal to 75% of the aggregate face
amount of all receivables so transferred during such day and the 90 preceding
days.


 


 “Responsible Officer” when used with
respect to the Trustee, means any officer within the corporate trust department
of the Trustee, including any vice president, assistant vice president,
assistant


 


20

















 


secretary, assistant
treasurer, trust officer or any other officer of the Trustee who customarily
performs functions similar to those performed by the persons who at the time
will be such officers, respectively, or to whom any corporate trust matter is
referred because of such person’s knowledge of and familiarity with the
particular subject and who will have direct responsibility for the
administration of this Supplemental Indenture.


 


“Restricted
Investment” means an Investment other than a Permitted Investment.


 


“Restricted
Subsidiary” of a Person means any Subsidiary of the referent Person
that is not an Unrestricted Subsidiary; provided,
that, on the date of this Supplemental Indenture, all Subsidiaries of the
Company other than Ball Asia Pacific, Ball Capital Corp. and the Excluded
Subsidiaries will be Restricted Subsidiaries of the Company.


 


“SEC”
means the Securities and Exchange Commission.


 


“Securities Act”
means the Securities Act of 1933, as amended.


 


“Securitization
Entity” means a Wholly-Owned Subsidiary of the Company, or another
Person in which the Company or any Restricted Subsidiary of the Company makes
an Investment and to which the Company or any Restricted Subsidiary of the
Company transfers receivables and related assets, that engages in no activities
other than in connection with the financing of receivables and that is
designated by the Board of the Directors of the Company, as provided below, as
a Securitization Entity (a) no portion of the Indebtedness or any other
Obligations, contingent or otherwise, of which (1) is guaranteed by the Company
or any Restricted Subsidiary of the Company, other than the Securitization
Entity, other than pursuant to Standard Securitization Undertakings or Limited
Originator Recourse, (2) is recourse to or obligates the Company or any
Restricted Subsidiary of the Company, other than the Securitization Entity, in
any way other than pursuant to Standard Securitization Undertakings or Limited
Originator Recourse or (3) subjects any property or asset of the Company or any
Restricted Subsidiary of the Company, other than the Securitization Entity,
directly or indirectly, contingently or otherwise, to the satisfaction thereof,
other than pursuant to Standard Securitization Undertakings or Limited
Originator Recourse, (b) with which neither the Company nor any Restricted
Subsidiary of the Company has any material contract, agreement, arrangement or
understanding other than on terms no less favorable to the Company or such
Restricted Subsidiary than those that might be obtained at the time from
Persons that are not Affiliates of the Company, other than fees payable in the
ordinary course of business in connection with servicing receivables of such
entity and (c) to which neither the Company nor any Restricted Subsidiary
of the Company has any obligation to maintain or preserve such entity’s
financial condition or cause such entity to achieve certain levels of operating
results. Any such designation by the Board of Directors of the Company will be
evidenced to the Trustee by filing with the Trustee a certified copy of the
resolution of the Board of Directors of the Company giving effect to such
designation and an Officers’ Certificate certifying that such designation
complied with the foregoing conditions.


 


“Significant
Subsidiary” means any Subsidiary that would be a “significant
subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Securities Act, as such Regulation is in effect on the date of
this Supplemental Indenture.


 


“Standard
Securitization Undertakings” means representations, warranties,
covenants and indemnities entered into by the Company or any Subsidiary of the
Company that are reasonably customary in receivables securitization
transactions.


 


“Stated Maturity”
means, with respect to any installment of interest or principal on any series
of Indebtedness, the date on which the payment of interest or principal was
scheduled to be paid in the


 


21

















 


original documentation
governing such Indebtedness, and will not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date originally
scheduled for the payment thereof.


 


“Subsidiary”
means, with respect to any specified Person:


 


(1)           any
corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled, without regard to the
occurrence of any contingency, to vote in the election of directors, managers
or trustees thereof is at the time owned or controlled, directly or indirectly,
by such Person; and


 


(2)           any
partnership (a) the sole general partner or the managing general partner of
which is such Person or an entity described in clause (1) and related to such
Person or (b) the only general partners of which are such Person or one or more
entities described in clause (1) and related to such Person, or any combination
thereof.


 


“Supplemental
Indenture” means this First Supplemental Indenture, dated as of the
date hereof, by and among the Company, the Guarantors and the Trustee,
governing the Notes, as amended, supplemented or otherwise modified from time to time in accordance with the Base
Indenture and the terms hereof.


 


“TIA”
means the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) as in
effect on the date on which this Supplemental Indenture is qualified under the
TIA.


 


“Total Assets”
means the total assets of the Company and its Restricted Subsidiaries on a
consolidated basis determined in accordance with GAAP, as shown on the most
recently available consolidated balance sheet of the Company and its Restricted
Subsidiaries.


 


“Transactions”
means the Acquisitions, the offering of the Initial Notes, the borrowings under
the Existing Credit Facilities on the date of this Supplemental Indenture,
tender offers by United States Can Company, a wholly owned subsidiary of U.S.
Can Corporation and the payment of related fees and expenses.


 


“Treasury Rate”
means, as of any redemption date, the yield to maturity as of such redemption
date of United States Treasury securities with a constant maturity (as compiled
and published in the most recent Federal Reserve Statistical Release H.15
(519) that has become publicly available at least two business days prior
to the redemption date (or, if such Statistical Release is no longer published,
any publicly available source of similar market data)) most nearly equal to the
period from the redemption date to March 15, 2011; provided, however, that if the period from
the redemption date to March 15, 2011, is less than one year, the weekly
average yield on actually traded United States Treasury securities adjusted to
a constant maturity of one year will be used.


 


“Unrestricted
Subsidiary” means (a) each of Ball Asia Pacific, Ball Capital Corp.,
and the Excluded Subsidiaries and (b) any Subsidiary of the Company that is
designated by the Board of Directors of the Company as an Unrestricted
Subsidiary pursuant to a board resolution, but only to the extent that such
Subsidiary:


 


(1)           has
no Indebtedness other than Non-Recourse Debt;


 


(2)           is
not party to any agreement, contract, arrangement or understanding with the
Company or any Restricted Subsidiary of the Company unless the terms of any
such agreement,


 


22

















 


contract, arrangement or
understanding are no less favorable to the Company or such Restricted
Subsidiary than those that might be obtained at the time from Persons who are
not Affiliates of the Company;


 


(3)           is
a Person with respect to which neither the Company nor any of its Restricted
Subsidiaries has any direct or indirect obligation (a) to subscribe for
additional Equity Interests or (b) to maintain or preserve such Person’s net
worth; and


 


(4)           has
not guaranteed or otherwise directly or indirectly provided credit support for
any Indebtedness of the Company or any of its Restricted Subsidiaries; provided, however, that the Company and
its Restricted Subsidiaries may guarantee the performance of Unrestricted
Subsidiaries in the ordinary course of business except for guarantees of
Obligations in respect of borrowed money.


 


Any designation of a Subsidiary of the Company as an
Unrestricted Subsidiary will be evidenced to the Trustee by filing with the
Trustee a certified copy of the board resolution giving effect to such
designation and an Officers’ Certificate certifying that such designation
complied with the preceding conditions and was permitted by Section 4.07
hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the
preceding requirements as an Unrestricted Subsidiary, it will thereafter cease
to be an Unrestricted Subsidiary for purposes of this Supplemental Indenture
and any Indebtedness of such Subsidiary will be deemed to be incurred by a
Restricted Subsidiary of the Company as of such date and, if such Indebtedness
is not permitted to be incurred as of such date under Section 4.09 hereof, the
Company will be in default of such Section 4.09. The Board of Directors of the
Company may at any time designate any Unrestricted Subsidiary to be a
Restricted Subsidiary; provided,
that such designation will be deemed to be an incurrence of Indebtedness by a
Restricted Subsidiary of the Company of any outstanding Indebtedness of such
Unrestricted Subsidiary and such designation will only be permitted if (1) such
Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma
basis as if such designation had occurred at the beginning of the four-quarter
reference period; and (2) no Default or Event of Default would be in existence
following such designation.


 


“U.S. Person”
means a U.S. person as defined in Rule 902(o) under the Securities Act.


 


“Voting Stock”
of any Person as of any date means the Capital Stock of such Person that is at
the time entitled to vote in the election of the Board of Directors of such
Person.


 


“Weighted Average
Life to Maturity” means, when applied to any Indebtedness at any
date, the number of years obtained by dividing:


 


(1)           the
sum of the products obtained by multiplying (a) the amount of each then
remaining installment, sinking fund, serial maturity or other required payments
of principal, including payment at final maturity, in respect of the
Indebtedness, by (b) the number of years, calculated to the nearest
one-twelfth, that will elapse between such date and the making of such payment;
by


 


(2)           the
then outstanding principal amount of such Indebtedness.


 


“Wholly-owned
Subsidiary” means a Restricted Subsidiary, 100% of the outstanding
Capital Stock and other Equity Interests of which are directly or indirectly
owned by the Company.


 


23

















 


Section
1.02           Other Definitions


 




	
  Term

  	
   

  	
  Defined in

  Section

  
	
   

  	
   

  	
   

  
	
  “Affiliate
  Transaction”

  	
   

  	
  4.11

  
	
  “Asset
  Sale Offer”

  	
   

  	
  4.10

  
	
  “Authentication
  Order”

  	
   

  	
  2.02

  
	
  “Calculation
  Date”

  	
   

  	
  1.01

  
	
  “Change
  of Control Offer”

  	
   

  	
  4.15

  
	
  “Change
  of Control Payment

  	
   

  	
  4.15

  
	
  “Change
  of Control Payment Date”

  	
   

  	
  4.15

  
	
  “Covenant
  Defeasance”

  	
   

  	
  8.03

  
	
  “DTC”

  	
   

  	
  2.03

  
	
  “Event
  of Default”

  	
   

  	
  6.01

  
	
  “Excess
  Proceeds”

  	
   

  	
  4.10

  
	
  “Investment
  Grade Ratings”

  	
   

  	
  4.20

  
	
  “Legal
  Defeasance”

  	
   

  	
  8.02

  
	
  “Moody’s”

  	
   

  	
  4.20

  
	
  “Offer
  Amount”

  	
   

  	
  3.09

  
	
  “Offer
  Period”

  	
   

  	
  3.09

  
	
  “Other
  Indebtedness”

  	
   

  	
  4.16

  
	
  “Paying
  Agent”

  	
   

  	
  2.03

  
	
  “Payment
  Default”

  	
   

  	
  6.01

  
	
  “Permitted
  Debt”

  	
   

  	
  4.09

  
	
  “Purchase
  Date”

  	
   

  	
  3.09

  
	
  “Rating
  Agencies”

  	
   

  	
  4.20

  
	
  “Registrar”

  	
   

  	
  2.03

  
	
  “Restricted
  Payments”

  	
   

  	
  4.07

  
	
  “S&P”

  	
   

  	
  4.20

  
	
  “Suspended
  Covenants”

  	
   

  	
  4.20

  






 


Section
1.03           Incorporation by Reference of Trust
Indenture Act.


 


Whenever this Supplemental Indenture refers to a
provision of the TIA, the provision is incorporated by reference in and made a
part of this Supplemental Indenture.


 


The following TIA terms used in this Supplemental
Indenture have the following meanings:


 


“indenture securities”
means the Notes;


 


“indenture security
holder” means a Holder of a Note;


 


“indenture to be
qualified” means this Supplemental Indenture;


 


“indenture trustee”
or “institutional trustee” means
the Trustee; and


 


“obligor”
on the Notes and the Guarantees means the Company and the Guarantors,
respectively, and any successor obligor upon the Notes and the Guarantees,
respectively.


 


All other terms used in this Supplemental Indenture
that are defined by the TIA, defined by TIA reference to another statute or
defined by SEC rule under the TIA have the meanings so assigned to them.


 


24

















 


Section 1.04           Rules of Construction.


 


Unless the context otherwise requires:


 


(1)           a
term has the meaning assigned to it;


 


(2)           an
accounting term not otherwise defined herein has the meaning assigned to it in
accordance with GAAP;


 


(3)           “or”
is not exclusive;


 


(4)           words
in the singular include the plural, and in the plural include the singular;


 


(5)           provisions
apply to successive events and transactions;


 


(6)           references
to sections of or rules under the Securities Act will be deemed to include
substitute, replacement or successor sections or rules adopted by the SEC from
time to time;


 


(7)           “will”
shall be interpreted to express a command; and


 


(8)           references
to sections of the Indenture refer to sections of this Supplemental Indenture.


 


Section 1.05           Relationship
with Base Indenture.


 


The terms and provisions contained in the Base
Indenture will constitute, and are hereby expressly made, a part of this
Supplemental Indenture and the Company, the Guarantors and the Trustee, by
their execution and delivery of this Supplemental Indenture, expressly agree to
such terms and provisions and to be bound thereby. However, to the extent any
provision of the Base Indenture conflicts with the express provisions of this
Supplemental Indenture, the provisions of this Supplemental Indenture will
govern and be controlling.


 


The Trustee accepts the amendment of the Base
Indenture effected by this Supplemental Indenture and agrees to execute the
trust created by the Base Indenture as hereby amended, but only upon the terms
and conditions set forth in this Supplemental Indenture, including the terms
and provisions defining and limiting the liabilities and responsibilities of
the Trustee in the performance of the trust created by the Base Indenture, and
without limiting the generality of the foregoing, the Trustee will not be
responsible in any manner whatsoever for or with respect to any of the recitals
or statements contained herein, all of which recitals or statements are made
solely by the Company and the Guarantors, or for or with respect to (1) the
validity or sufficiency of this Supplemental Indenture or any of the terms or
provisions hereof, (2) the proper authorization hereof by the Company and the
Guarantors, (3) the due execution hereof by the Company and the Guarantors or
(4) the consequences (direct or indirect and whether deliberate or inadvertent)
of any amendment herein provided for, and the Trustee makes no representation
with respect to any such matters.


 


25

















 


ARTICLE 2.

THE NOTES


 


Section
2.01           Form and Dating.


 


(a)           General.
The Notes and the Trustee’s certificate of authentication will be substantially
in the form of Exhibit A hereto. The Notes may have notations, legends
or endorsements required by law, stock exchange rule or usage. Each Note will
be dated the date of its authentication. The Notes will be in denominations of
$1,000 and integral multiples thereof.


 


The terms and provisions contained in the Notes will
constitute, and are hereby expressly made, a part of this Supplemental
Indenture and the Company, the Guarantors and the Trustee, by their execution
and delivery of this Supplemental Indenture, expressly agree to such terms and
provisions and to be bound thereby. However, to the extent any provision of any
Note conflicts with the express provisions of the Base Indenture, the
provisions of the Note will govern and be controlling, and to the extent any
provision of the Note conflicts with the express provisions of this
Supplemental Indenture, the provisions of this Supplemental Indenture will
govern and be controlling.


 


(b)           Global
Notes. Notes issued in global form will be substantially in the form
of Exhibit A attached hereto (including the Global Note Legend thereon).
Notes issued in definitive form will be substantially in the form of Exhibit
A attached hereto (but without the Global Note Legend thereon). Each Global
Note will represent such of the outstanding Notes as will be specified therein
and each will provide that it will represent the aggregate principal amount of
outstanding Notes from time to time endorsed thereon and that the aggregate
principal amount of outstanding Notes represented thereby may from time to time
be reduced or increased, as appropriate, to reflect exchanges and redemptions.
Any endorsement of a Global Note to reflect the amount of any increase or
decrease in the aggregate principal amount of outstanding Notes represented
thereby will be made by the Trustee or the Custodian, at the direction of the
Trustee, in accordance with instructions given by the Holder thereof as  required by Section 2.06 hereof.


 


Section 2.02           Execution and Authentication.


 


One Officer will sign the Notes for the Company and
the Guarantees for the Guarantors by manual or facsimile signature. If an
Officer whose signature is on a Note and/or a Guarantee no longer holds that
office at the time such Note and/or Guarantee is authenticated, such Note
and/or Guarantee will nevertheless be valid.


 


A Note and/or a Guarantee will not be valid until
authenticated by the manual signature of the Trustee. The signature will be
conclusive evidence that the Note or Guarantee, as applicable, has been
authenticated under this Supplemental Indenture.


 


The Trustee will, upon a written order of the Company
signed by one Officer (an “Authentication
Order”), authenticate Notes and Guarantees for original issue in
accordance with this Supplemental Indenture, including any Additional Notes
issued pursuant to Section 2.14 hereof.


 


The Trustee may appoint an authenticating agent
acceptable to the Company to authenticate Notes. An authenticating agent may
authenticate Notes and Guarantees whenever the Trustee may do so. Each
reference in this Supplemental Indenture to authentication by the Trustee
includes authentication by such agent. An authenticating agent has the same
rights as an Agent to deal with Holders, the Company or an Affiliate of the
Company.


 


26

















 


Section 2.03           Registrar and Paying Agent.


 


The Company will maintain an office or agency where
Notes may be presented for registration of transfer or for exchange (“Registrar”) and an office or agency where
Notes may be presented for payment (“Paying
Agent”). The Registrar will keep a register of the Notes and of
their transfer and exchange. The Company may appoint one or more co-registrars
and one or more additional paying agents. The term “Registrar” includes any
co-registrar and the term “Paying Agent” includes any additional paying agent.
The Company may change any Paying Agent or Registrar without notice to any
Holder. The Company will notify the Trustee in writing of the name and address
of any Agent not a party to this Supplemental Indenture. If the Company fails
to appoint or maintain another entity as Registrar or Paying Agent, the Trustee
will act as such. The Company or any of its Subsidiaries may act as Paying
Agent or Registrar.


 


The Company initially appoints The Depository Trust
Company (“DTC”) to act as
Depositary with respect to the Global Notes.


 


The Company initially appoints the Trustee to act as
the Registrar and Paying Agent and to act as Custodian with respect to the
Global Notes.


 


Section 2.04           Paying Agent to Hold Money in Trust.


 


The Company will require each Paying Agent other than
the Trustee to agree in writing that the Paying Agent will hold in trust for
the benefit of Holders or the Trustee all money held by the Paying Agent for
the payment of principal, premium, if any, or interest on the Notes, and will
notify the Trustee of any default by the Company in making any such payment.
While any such default continues, the Trustee may require a Paying Agent to pay
all money held by it to the Trustee. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee. Upon payment over to
the Trustee, the Paying Agent (if other than the Company or a Subsidiary) will
have no further liability for the money. If the Company or a Subsidiary acts as
Paying Agent, it will segregate and hold in a separate trust fund for the
benefit of the Holders all money held by it as Paying Agent. Upon any
bankruptcy or reorganization proceedings relating to the Company, the Trustee
will serve as Paying Agent for the Notes.


 


Section 2.05           Holder Lists.


 


The Trustee will preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of all Holders and will otherwise comply with TIA Section 312(a). If
the Trustee is not the Registrar, the Company will furnish to the Trustee at
least seven Business Days before each interest payment date and at such other
times as the Trustee may request in writing, a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of the
Holders of Notes and the Company will otherwise comply with TIA Section 312(a).


 


Section 2.06           Transfer and Exchange.


 


(a)           Transfer
and Exchange of Global Notes. A Global Note may not be transferred
as a whole except by the Depositary to a nominee of the Depositary, by a
nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes will be exchanged
by the Company for Definitive Notes if:


 


(1)           the
Company delivers to the Trustee notice from the Depositary that it is unwilling
or unable to continue to act as Depositary or that it is no longer a clearing agency


 


27

















 


registered under the Exchange Act and, in either case, a
successor Depositary is not appointed by the Company within 120 days after the
date of such notice from the Depositary; or


 


(2)           the
Company in its sole discretion determines that the Global Notes (in whole but
not in part) should be exchanged for Definitive Notes and delivers a written
notice to such effect to the Trustee.


 


Upon the occurrence of either of the preceding events
in (1) or (2) above, Definitive Notes will be issued in such names and in any
approved denominations as the Depositary will instruct the Trustee. Global
Notes also may be exchanged or replaced, in whole or in part, as provided in
Sections 2.07 and 2.10 hereof. Every Note authenticated and delivered in
exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to
this Section 2.06 or Section 2.07 or 2.10 hereof, will be authenticated and
delivered in the form of, and will be, a Global Note. A Global Note may not be
exchanged for another Note other than as provided in this Section 2.06(a),
however, beneficial interests in a Global Note may be transferred and exchanged
as provided in Sections 2.06(b), (c) or (g) hereof.


 


(b)           Transfer
and Exchange of Beneficial Interests in the Global Notes. The
transfer and exchange of beneficial interests in the Global Notes will be
effected through the Depositary, in accordance with the provisions of this
Supplemental Indenture and the Applicable Procedures. Transfers of beneficial
interests in the Global Notes also will require compliance with either
subparagraph (1) or (2) below, as applicable, as well as one or more of the
other following subparagraphs, as applicable:


 


(1)           Transfer of Beneficial Interests in the Same Global
Note. Beneficial interests in any Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in a
Global Note. No written orders or instructions will be required to be delivered
to the Registrar to effect the transfers described in this Section 2.06(b)(1).


 


(2)           All Other Transfers and Exchanges of Beneficial
Interests in Global Notes. In connection with all transfers and
exchanges of beneficial interests that are not subject to Section 2.06(b)(1)
above, the transferor of such beneficial interest must deliver to the Registrar
either:


 


(A)          (i)
 a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the Applicable
Procedures directing the Depositary to credit or cause to be credited a
beneficial interest in another Global Note in an amount equal to the beneficial
interest to be transferred or exchanged; and


 


(ii)  instructions
given in accordance with the Applicable Procedures containing information
regarding the Participant account to be credited with such increase.


 


Upon satisfaction of all
of the requirements for transfer or exchange of beneficial interests in Global
Notes contained in this Supplemental Indenture and the Notes or otherwise
applicable under the Securities Act, the Trustee will adjust the principal
amount of the relevant Global Note(s) pursuant to Section 2.06(g) hereof.


 


(c)           Transfer
or Exchange of Beneficial Interests for Definitive Notes.


 


If any holder of a beneficial
interest in a Global Note proposes to exchange such beneficial interest for a
Definitive Note or to transfer such beneficial interest to a Person who takes
delivery thereof in the form of a Definitive Note, then, upon satisfaction of
the conditions


 


28

















 


set forth in Section 2.06(b)(2) hereof, the Trustee will
cause the aggregate principal amount of the applicable Global Note to be
reduced accordingly pursuant to Section 2.06(g) hereof, and the Company will
execute and the Trustee will authenticate and deliver to the Person designated
in the instructions a Definitive Note in the appropriate principal amount. Any
Definitive Note issued in exchange for a beneficial interest pursuant to this
Section 2.06(c) will be registered in such name or names and in such authorized
denomination or denominations as the holder of such beneficial interest
requests through instructions to the Registrar from or through the Depositary
and the Participant or Indirect Participant. The Trustee will deliver such Definitive
Notes to the Persons in whose names such Notes are so registered.


 


(d)           Transfer and Exchange of Definitive Notes for
Beneficial Interests.


 


A Holder of a Definitive Note may
exchange such Note for a beneficial interest in a Global Note or transfer such
Definitive Notes to a Person who takes delivery thereof in the form of a
beneficial interest in a Global Note at any time. Upon receipt of a request for
such an exchange or transfer, the Trustee will cancel the applicable Definitive
Note and increase or cause to be increased the aggregate principal amount of
one of the Global Notes.


 


If any such exchange or transfer from a Definitive
Note to a beneficial interest is effected pursuant to the previous paragraph at
a time when a Global Note has not yet been issued, the Company will issue and,
upon receipt of the Company’s order, the Trustee will authenticate one or more
Global Notes in an aggregate principal amount equal to the principal amount of
Definitive Notes so transferred.


 


A Holder of Definitive Notes may transfer such Notes
to a Person who takes delivery thereof in the form of a Definitive Note.


 


(e)           Transfer
and Exchange of Definitive Notes for Definitive Notes. Upon request
by a Holder of Definitive Notes and such Holder’s compliance with the provisions
of this Section 2.06(e), the Registrar will register the transfer or exchange
of Definitive Notes. Prior to such registration of transfer or exchange, the
requesting Holder will present or surrender to the Registrar the Definitive
Notes duly endorsed or accompanied by a written instruction of transfer in form
satisfactory to the Registrar duly executed by such Holder or by his attorney,
duly authorized in writing. In addition, the requesting Holder will provide any
additional certifications, documents and information, as applicable, required
pursuant to the following provisions of this Section 2.06(e).


 


(f)            Legends.
The following legends will appear on the face of all Global Notes issued under
this Supplemental Indenture unless specifically stated otherwise in the
applicable provisions of this Supplemental Indenture.


 


“THIS GLOBAL NOTE
IS HELD BY THE DEPOSITARY (AS  DEFINED IN
THE FIRST SUPPLEMENTAL INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY
FOR THE BENEFIT OF THE  BENEFICIAL OWNERS
HEREOF, AND IS NOT TRANSFERABLE TO ANY 
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH
NOTATIONS HEREON AS MAY BE  REQUIRED
PURSUANT TO SECTION 2.06 OF THE FIRST SUPPLEMENTAL INDENTURE, (II) THIS GLOBAL
NOTE MAY BE EXCHANGED  IN WHOLE BUT NOT
IN PART PURSUANT TO SECTION 2.06(a) OF THE FIRST SUPPLEMENTAL INDENTURE, (III)
THIS GLOBAL NOTE  MAY BE DELIVERED TO THE
TRUSTEE FOR  CANCELLATION PURSUANT TO
SECTION 2.11 OF THE SUPPLEMENTAL INDENTURE AND 
(IV) THIS GLOBAL


29

















 


NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE
PRIOR WRITTEN CONSENT OF THE COMPANY.


 


UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY
TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.  UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55
WATER STREET, NEW YORK, NEW YORK) (“DTC”) TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.”


 


(g)           Cancellation and/or Adjustment of Global Notes.  At such time as all beneficial interests in a
particular Global Note have been exchanged for Definitive Notes or a particular
Global Note has been redeemed, repurchased or canceled in whole and not in
part, each such Global Note will be returned to or retained and canceled by the
Trustee in accordance with Section 2.11 hereof. 
At any time prior to such cancellation, if any beneficial interest in a
Global Note is exchanged for or transferred to a Person who will take delivery
thereof in the form of a beneficial interest in another Global Note or for
Definitive Notes, the principal amount of Notes represented by such Global Note
will be reduced accordingly and an endorsement will be made on such Global Note
by the Trustee or by the Depositary at the direction of the Trustee to reflect
such reduction; and if the beneficial interest is being exchanged for or
transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Note, such other Global Note will be
increased accordingly and an endorsement will be made on such Global Note by
the Trustee or by the Depositary at the direction of the Trustee to reflect
such increase.


 


(h)           General Provisions Relating to Transfers and
Exchanges.


 


(1)  
        To permit registrations of
transfers and exchanges, the Company will execute and the Trustee will authenticate
Global Notes and Definitive Notes upon the Company’s order or at the Registrar’s
request.


 


(2)  
        No service charge will be
made to a holder of a beneficial interest in a Global Note or to a Holder of a
Definitive Note for any registration of transfer or exchange, but the Company
may require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon exchange or transfer
pursuant to Sections 2.10, 3.06, 3.09, 4.10, 4.15 and 9.05 hereof).


 


(3)  
        The Registrar will not be
required to register the transfer of or exchange any Note selected for
redemption in whole or in part, except the unredeemed portion of any Note being
redeemed in part.


 


30

















 


(4)  
        All Global Notes and
Definitive Notes issued upon any registration of transfer or exchange of Global
Notes or Definitive Notes will be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Supplemental Indenture, as the Global Notes or Definitive Notes surrendered
upon such registration of transfer or exchange.


 


(5)  
        The Company will not be
required:


 


(A) to issue, to register the
transfer of or to exchange any Notes during a period of 15 days before the day
of any selection of Notes for redemption under Section 3.02 hereof and ending
at the close of business on the day of selection;


 


(B) to register the transfer of or to
exchange any Note so selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part; or 


 


(C) to register the transfer of or to
exchange a Note between a record date and the next succeeding interest payment
date.


 


(6)  
        Prior to due presentment
for the registration of a transfer of any Note, the Trustee, any Agent and the
Company may deem and treat the Person in whose name any Note is registered as
the absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other purposes, and none of
the Trustee, any Agent or the Company will be affected by notice to the
contrary.


 


(7)  
        The Trustee will
authenticate Global Notes and Definitive Notes in accordance with the
provisions of Section 2.02 hereof.


 


(8)  
        All certifications,
certificates and Opinions of Counsel required to be submitted to the Registrar
pursuant to this Section 2.06 to effect a registration of transfer or exchange
may be submitted by facsimile.


 


(9)  
        The Trustee shall have no
obligation or duty to monitor, determine or inquire as to compliance with any
restrictions on transfer imposed under this Supplemental Indenture or under
applicable law with respect to any transfer of any interest in any Note other
than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly
required by the terms of, this Supplemental Indenture, and to examine the same
to determine substantial compliance as to form with the express requirements
hereof.


 


(10)  
      Neither the Trustee nor any
Agent shall have any responsibility for any actions taken or not taken by the
Depositary.


 


Section 2.07           Replacement Notes.


 


If any mutilated
Note is surrendered to the Trustee or the Company and the Trustee receives
evidence to its satisfaction of the destruction, loss or theft of any Note, the
Company will issue and the Trustee, upon receipt of an Authentication Order,
will authenticate a replacement Note if the Trustee’s requirements are
met.  An indemnity bond must be supplied
by the Holder that is sufficient in the judgment of the Trustee and the Company
to protect the Company, the Trustee, any Agent and any


 


31

















 


authenticating
agent from any loss that any of them may suffer if a Note is replaced.  The Company may charge for its expenses in
replacing a Note.


 


Every
replacement Note is an additional obligation of the Company and will be entitled
to all of the benefits of this Supplemental Indenture equally and
proportionately with all other Notes duly issued hereunder.


 


Section 2.08           Outstanding Notes.


 


The Notes
outstanding at any time are all the Notes authenticated by the Trustee except
for those canceled by it, those delivered to it for cancellation, those
reductions in the interest in a Global Note effected by the Trustee in
accordance with the provisions hereof, and those described in this Section as
not outstanding.  Except as set forth in Section
2.09 hereof, a Note does not cease to be outstanding because the Company or an
Affiliate of the Company holds the Note.


 


If a Note is
replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless
the Trustee receives proof satisfactory to it that the replaced Note is held by
a bona fide purchaser.


 


If the
principal amount of any Note is considered paid under Section 4.01 hereof, it
ceases to be outstanding and interest on it ceases to accrue.


 


If the Paying
Agent (other than the Company, a Subsidiary or an Affiliate of any thereof)
holds, on a redemption date or maturity date, money sufficient to pay Notes
payable on that date, then on and after that date such Notes will be deemed to
be no longer outstanding and will cease to accrue interest.


 


Section 2.09           Treasury Notes.


 


In determining
whether the Holders of the required principal amount of Notes have concurred in
any direction, waiver or consent, Notes owned by the Company, or by any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company, will be considered as though not outstanding,
except that for the purposes of determining whether the Trustee will be
protected in relying on any such direction, waiver or consent, only Notes that
a Responsible Officer of the Trustee actually knows are so owned will be so
disregarded.


 


Section 2.10           Temporary Notes.


 


Until
certificates representing Notes are ready for delivery, the Company may prepare
and the Trustee, upon receipt of an Authentication Order, will authenticate
temporary Notes.  Temporary Notes will be
substantially in the form of certificated Notes but may have variations that
the Company considers appropriate for temporary Notes and as will be reasonably
acceptable to the Trustee.  Without
unreasonable delay, the Company will prepare and the Trustee will authenticate
definitive Notes in exchange for temporary Notes.


 


Holders of
temporary Notes will be entitled to all of the benefits of this Supplemental
Indenture.


 


Section 2.11           Cancellation.


 


The Company at
any time may deliver Notes to the Trustee for cancellation.  The Registrar and Paying Agent will forward
to the Trustee any Notes surrendered to them for registration of transfer,
exchange or payment.  The Trustee and no
one else will cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and will return such canceled
Notes to the


 


32

















 


Company.  The Company may not issue new Notes to
replace Notes that it has paid or that have been delivered to the Trustee for
cancellation.


 


Section 2.12           Defaulted Interest.


 


If the Company
defaults in a payment of interest on the Notes, it will pay the defaulted
interest in any lawful manner plus,
to the extent lawful, interest payable on the defaulted interest, to the
Persons who are Holders on a subsequent special record date, in each case at
the rate provided in the Notes and in Section 4.01 hereof.  The Company will notify the Trustee in writing
of the amount of defaulted interest proposed to be paid on each Note and the
date of the proposed payment.  The
Company will fix or cause to be fixed each such special record date and payment
date, provided that no such
special record date will be less than 10 days prior to the related payment date
for such defaulted interest.  At least 15
days before the special record date, the Company (or, upon the written request
of the Company, the Trustee in the name and at the expense of the Company) will
mail or cause to be mailed to Holders a notice that states the special record
date, the related payment date and the amount of such interest to be paid.


 


Section 2.13           CUSIP Number.


 


The Company in
issuing the Notes may use “CUSIP” numbers (if then generally in use), and, if
so, the Trustee will use CUSIP numbers in notices of redemption as a
convenience to Holders; provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Notes or as contained in
any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such redemption will not
be affected by any defect in or the omission of such numbers.  The Company will promptly notify the Trustee
in writing of any change in the CUSIP numbers.


 


Section 2.14           Issuance of
Additional Notes.


 


The Company
will be entitled, upon delivery of an Officer’s Certificate and an Opinion of
Counsel, subject to its compliance with Section 4.09 hereof, to issue
Additional Notes under this Supplemental Indenture which will have identical
terms as the Initial Notes issued on the date hereof, other than with respect
to the date of issuance and issue price. 
The Initial Notes issued on the date hereof and any Additional Notes
issued will be treated as a single class for all purposes under this
Supplemental Indenture.


 


With respect to
any Additional Notes, the Company will set forth in a resolution of its Board
of Directors and an Officer’s Certificate, a copy of each which will be
delivered to the Trustee, the following information:


 


(a)  
        the aggregate principal
amount of such Additional Notes to be authenticated and delivered pursuant to
this Supplemental Indenture; and


 


(b)  
        the issue price, the issue
date and the CUSIP number of such Additional Notes.


 


33

















 


ARTICLE 3.

REDEMPTION AND PREPAYMENT


 


Section 3.01           Notice to Trustee.


 


If the Company
elects to redeem Notes pursuant to the redemption provisions of Section 3.07
hereof, it will furnish to the Trustee, at least 30 days but not more than 60
days before a redemption date, an Officers’ Certificate setting forth:


 


(i) the
provision of this Supplemental Indenture pursuant to which the redemption will
occur;


 


(ii) the
redemption date;


 


(iii) the
principal amount of Notes to be redeemed;


 


(iv) the
redemption price; and 


 


(v) the CUSIP
numbers of the Notes to be redeemed.


 


Section 3.02           Selection of Notes
to Be Redeemed.


 


If less than
all of the Notes are to be redeemed at any time, the Trustee will select the
Notes to be redeemed among the Holders of the Notes (a) in compliance with the
requirements of the principal national securities exchange, if any, on which
the Notes are listed or, (b) if the Notes are not so listed, on a pro rata basis, by lot or in accordance
with any other method the Trustee considers fair and appropriate.  In the event of partial redemption by lot,
the particular Notes to be redeemed will be selected, unless otherwise provided
herein, not less than 30 nor more than 60 days prior to the redemption date by
the Trustee from the outstanding Notes not previously called for redemption.


 


The Trustee
will promptly notify the Company in writing of the Notes selected for
redemption and, in the case of any Note selected for partial redemption, the
principal amount thereof to be redeemed. 
Notes and portions of Notes selected will be in amounts of $1,000 or
whole multiples of $1,000; except that if all of the Notes of a Holder are to
be redeemed, the entire outstanding amount of Notes held by such Holder, even
if not a multiple of $1,000, will be redeemed. 
Except as provided in the preceding sentence, provisions of this
Supplemental Indenture that apply to Notes called for redemption also apply to
portions of Notes called for redemption.


 


Section 3.03           Notice of
Redemption.


 


At least 30
days but not more than 60 days before a redemption date, the Company will mail
or cause to be mailed, by first class mail, a notice of redemption to each
Holder whose Notes are to be redeemed at its registered address.


 


The notice will
identify the Notes to be redeemed, including the CUSIP numbers, and will state:


 


(1)  
        the redemption date;


 


(2)  
        the redemption price;


 


(3)  
        if any Note is being
redeemed in part, the portion of the principal amount of such Note to be
redeemed and that, after the redemption date upon surrender of such Note, a new
Note


 


34

















 


or Notes in principal amount equal to the unredeemed portion
will be issued in the name of the Holder of such Notes upon cancellation of the
original Note;


 


(4)  
        the name and address of the
Paying Agent;


 


(5)  
        that Notes called for
redemption must be surrendered to the Paying Agent to collect the redemption
price;


 


(6)  
        that, unless the Company
defaults in making such redemption payment, interest on Notes called for
redemption ceases to accrue on and after the redemption date;


 


(7)  
        the paragraph of the Notes
and/or Section of this Supplemental Indenture pursuant to which the Notes
called for redemption are being redeemed; and


 


(8)  
        that no representation is
made as to the correctness or accuracy of the CUSIP number, if any, listed in
such notice or printed on the Notes.


 


At the Company’s
request, the Trustee will give the notice of redemption in the Company’s name
and at its expense; provided, however, that the Company will have
delivered to the Trustee, at least 45 days prior to the redemption date (or
such shorter period as the Trustee in its sole discretion may allow), an
Officers’ Certificate requesting that the Trustee give such notice and setting
forth the information to be stated in such notice as provided in the preceding
paragraph.


 


Section 3.04           Effect of Notice of
Redemption.


 


Once notice of
redemption is mailed in accordance with Section 3.03 hereof, Notes called for
redemption become irrevocably due and payable on the redemption date at the
redemption price.  A notice of redemption
may not be conditional.


 


Section 3.05           Deposit of
Redemption Price.


 


One Business
Day prior to the redemption date, the Company will deposit with the Trustee or
with the Paying Agent money sufficient to pay the redemption price of and
accrued interest on all Notes to be redeemed on that date.  The Trustee or the Paying Agent will promptly
return to the Company any money deposited with the Trustee or the Paying Agent
by the Company in excess of the amounts necessary to pay the redemption price
of, and accrued interest on, all Notes to be redeemed.


 


If the Company
complies with the provisions of the preceding paragraph, on and after the
redemption date, interest will cease to accrue on the Notes or the portions of
Notes called for redemption.  If a Note
is redeemed on or after an interest record date but on or prior to the related interest
payment date, then any accrued and unpaid interest will be paid to the Person
in whose name such Note was registered at the close of business on such record
date.  If any Note called for redemption
will not be so paid upon surrender for redemption because of the failure of the
Company to comply with the preceding paragraph, interest will be paid on the
unpaid principal, from the redemption date until such principal is paid, and to
the extent lawful on any interest not paid on such unpaid principal, in each
case at the rate provided in the Notes and in Section 4.01 hereof.


 


35

















 


Section 3.06           Notes Redeemed in
Part.


 


Upon surrender
of a Note that is redeemed in part, the Company will issue and, upon the Company’s
written request, the Trustee will authenticate for the Holder at the expense of
the Company a new Note equal in principal amount to the unredeemed portion of
the Note surrendered.


 


No Notes of
$1,000 or less can be redeemed in part.


 


Section 3.07           Optional Redemption.


 


(a)           At
any time prior to March 15, 2009, the Company may, on any one or more
occasions, redeem, in whole or in part, up to 35% of the aggregate principal
amount of the Notes, including Additional Notes of the same class, if any, issued
under this Supplemental Indenture at a redemption price of par plus the stated
interest rate, or 106.625% of the principal amount of the Notes redeemed, plus
accrued and unpaid interest to the redemption date, with the net cash proceeds
of one or more Equity Offerings; provided,
that:  


 


(1)  
        at least 65% of the
aggregate principal amount of the Notes, including Additional Notes of the same
class, if any, issued under this Supplemental Indenture remains outstanding
immediately after the occurrence of such redemption, excluding Notes held by
the Company and its Subsidiaries; and 


 


(2)  
        the redemption occurs
within 90 days of the date of the closing of such Equity Offering.  


 


(b)           At
any time prior to March 15, 2011, the Company, at its option, may redeem
all or a part of the Notes, upon not less than 30 nor more than 60 days’
prior notice, at a redemption price equal to 100% of the principal amount of
Notes redeemed plus the Applicable Premium as of, and accrued and unpaid
interest, if any, to, the date of redemption, subject to the rights of Holders
of Notes on the relevant record date to receive interest due on the relevant
interest payment date.


 


(c)           Except
pursuant to clauses (a) and (b) above, the Notes will not be redeemable at the
Company’s option prior to March 15, 2011. 


 


(d)           On
or after March 15, 2011, the Company, at its option, may redeem all or a part
of the Notes upon not less than 30 nor more than 60 days’ notice, at the
redemption prices, expressed as percentages of principal amount, set forth
below, plus accrued and unpaid interest on the Notes redeemed, to the
applicable redemption date, if redeemed during the twelve-month period
beginning on March 15 of the years indicated below: 


 




	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2011

  	
   

  	
  103.313

  	
  %

  
	
  2012

  	
   

  	
  102.208

  	
  %

  
	
  2013

  	
   

  	
  101.104

  	
  %

  
	
  2014 and
  thereafter

  	
   

  	
  100.000

  	
  %

  






 


Section 3.08           Mandatory
Redemption.


 


The Company is
not required to make any mandatory redemption or sinking fund payments with
respect to the Notes.


 


36

















 


Section 3.09           Offer to Purchase
by Application of Excess Proceeds.


 


In the event
that, pursuant to Section 4.10 hereof, the Company is required to commence an
Asset Sale Offer, it will follow the procedures specified below.


 


The Asset Sale
Offer will remain open for a period of 20 Business Days following its
commencement and no longer, except to the extent that a longer period is
required by applicable law (the “Offer
Period”).  No later than five
Business Days after the termination of the Offer Period (the “Purchase Date”), the Company will purchase
the principal amount of Notes and such other pari
passu Indebtedness required to be purchased pursuant to Section 4.10
hereof (the “Offer Amount”) or,
if less than the Offer Amount has been tendered, all Notes and such other pari passu Indebtedness tendered in
response to the Asset Sale Offer. 
Payment for any Notes so purchased will be made in the same manner as
interest payments are made.


 


If the Purchase
Date is on or after an interest record date and on or before the related
interest payment date, any accrued and unpaid interest will be paid to the
Person in whose name a Note is registered at the close of business on such
record date, and no additional interest will be payable to Holders who tender
Notes pursuant to the Asset Sale Offer.


 


Upon the
commencement of an Asset Sale Offer, the Company will send, by first class
mail, a notice to the Trustee and each of the Holders.  The notice will contain all instructions and
materials necessary to enable such Holders to tender Notes pursuant to the
Asset Sale Offer.  The Asset Sale Offer
will be made to all Holders and all holders of other Indebtedness that is pari passu with the Notes containing
similar provisions to those set forth in this Supplemental Indenture with
respect to offers to purchase or redeem with the proceeds of sales of
assets.  The notice, which will govern
the terms of the Asset Sale Offer, will state:


 


(1)  
        that the Asset Sale Offer
is being made pursuant to this Section 3.09 and Section 4.10 hereof and the
length of time the Asset Sale Offer will remain open;


 


(2)  
        the Offer Amount, the
purchase price and the Purchase Date;


 


(3)  
        that any Note not tendered
or accepted for payment will continue to accrue interest;


 


(4)  
        that, unless the Company
defaults in making such payment, any Note accepted for payment pursuant to the
Asset Sale Offer will cease to accrue interest after the Purchase Date;


 


(5)  
        that Holders electing to
have a Note purchased pursuant to an Asset Sale Offer may only elect to have
all of such Note purchased and may not elect to have only a portion of such
Note purchased;


 


(6)  
        that Holders electing to
have a Note purchased pursuant to any Asset Sale Offer will be required to
surrender the Note, with the form entitled “Option of Holder to Elect Purchase”
on the reverse of the Note completed, or transfer by book-entry transfer, to
the Company, a depositary, if appointed by the Company, or a Paying Agent at
the address specified in the notice at least three days before the Purchase
Date;


 


(7)  
        that Holders will be
entitled to withdraw their election if the Company, the depositary or the
Paying Agent, as the case may be, receives, not later than the expiration of
the Offer Period, a telegram, facsimile transmission or letter setting forth
the name of the Holder, the


 


37

















 


principal amount of the Note the Holder delivered for
purchase and a statement that such Holder is withdrawing his election to have
such Note purchased;


 


(8)  
        that, if the aggregate
principal amount of Notes and other pari
passu Indebtedness surrendered by Holders exceeds the Offer Amount,
the Company will select the Notes and other pari
passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and
other pari passu Indebtedness
surrendered (with such adjustments as may be deemed appropriate by the Company
so that only Notes in denominations of $1,000, or integral multiples thereof,
will be purchased); and


 


(9)  
        that Holders whose Notes
were purchased only in part will be issued new Notes equal in principal amount
to the unpurchased portion of the Notes surrendered (or transferred by
book-entry transfer).


 


On or before
the Purchase Date, the Company will, to the extent lawful, accept for payment,
on a pro rata basis to the extent
necessary, the Offer Amount of Notes or portions thereof tendered pursuant to
the Asset Sale Offer, or if less than the Offer Amount has been tendered, all
Notes tendered, and will deliver to the Trustee an Officers’ Certificate
stating that such Notes or portions thereof were accepted for payment by the
Company in accordance with the terms of this Section 3.09.  The Company, the Depositary or the Paying
Agent, as the case may be, will promptly (but in any case not later than five
days after the Purchase Date) mail or deliver to each tendering Holder an
amount equal to the purchase price of the Notes tendered by such Holder and
accepted by the Company for purchase, and the Company will promptly issue a new
Note, and the Trustee, upon written request from the Company will authenticate
and mail or deliver such new Note to such Holder, in a principal amount equal
to any unpurchased portion of the Note surrendered.  Any Note not so accepted will be promptly
mailed or delivered by the Company to the Holder thereof.  The Company will publicly announce the
results of the Asset Sale Offer on the Purchase Date.


 


Other than as
specifically provided in this Section 3.09, any purchase pursuant to this
Section 3.09 will be made pursuant to the provisions of Sections 3.01 through
3.06 hereof.  Upon completion of each
Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.


 


ARTICLE 4.

COVENANTS


 


Section 4.01           Payment of Notes.


 


The Company or
a Guarantor will pay or cause to be paid the principal of, premium, if any, and
interest on the Notes on the dates and in the manner provided in the
Notes.  Principal, premium, if any, and
interest will be considered paid on the date due if the Paying Agent, if other than
the Company or a Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the
due date money deposited by the Company in immediately available funds and
designated for and sufficient to pay all principal, premium, if any, and
interest then due.  


 


The Company or
a Guarantor will pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
the then applicable interest rate on the Notes to the extent lawful; it will
pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest at the same rate to the
extent lawful.


 


38

















 


Section 4.02           Maintenance of
Office or Agency.


 


The Company
will maintain in the Borough of Manhattan, the City of New York, an office or
agency (which may be an office of the Trustee or an affiliate of the Trustee,
Registrar or co-registrar) where Notes may be surrendered for registration of
transfer or for exchange and where notices and demands to or upon the Company
in respect of the Notes and this Supplemental Indenture may be served.  The Company will give prompt written notice
to the Trustee of the location, and any change in the location, of such office
or agency.  If at any time the Company
fails to maintain any such required office or agency or fails to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee.


 


The Company may
also from time to time designate one or more other offices or agencies where
the Notes may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations; provided,
however, that no such designation or rescission will in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, the City of New York for such purposes.  The Company will give prompt written notice
to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.


 


The Company
hereby designates the Corporate Trust Office of the Trustee as one such office
or agency of the Company in accordance with Section 2.03 hereof.


 


Section 4.03           Reports.


 


(a)           Whether or not the Company is
required by the rules and regulations of the SEC, so long as any Notes are
outstanding, the Company will furnish to the Holders of Notes within the time
periods specified in the SEC’s rules and regulations:


 


(1)           all
quarterly and annual financial information that would be required to be
contained in a filing with the SEC on Forms 10-Q and 10-K if the Company were
required to file such Forms, including a “Management’s Discussion and Analysis
of Financial Condition and Results of Operations” and, with respect to the
annual information only, a report on the annual financial statements by the
Company’s independent registered public accountants (which will be firm(s) of
established national reputation); and 


 


(2)  
        all current reports that
would be required to be filed with the SEC on Form 8-K if the Company were
required to file such reports.  


 


In addition,
whether or not required by the rules and regulations of the SEC, the Company
will file a copy of all such information and reports referred to in clauses (1)
and (2) above with the SEC for public availability within the time periods
specified in the SEC’s rules and regulations, unless the SEC will not accept
such a filing, and make such information available to securities analysts and
prospective investors upon request.  The
Company will at all times comply with TIA Section 314(a).  Delivery of such reports, information and
documents to the Trustee is for informational purposes only and the Trustee’s
receipt of such will not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Company’s compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers’ Certificates).


 


If the Company is no longer subject to the
periodic reporting requirements of the Exchange Act for any reason, the Company
will nevertheless continue filing the reports specified in the preceding paragraphs
of this Section 4.02 with the SEC within the time periods specified above
unless the SEC will not accept such a filing. The Company agrees that it will
not take any action for the purpose of causing


 


39

















 


the SEC not to accept any such filings. If, notwithstanding the
foregoing, the SEC will not accept the Company’s filings for any reason, the
Company will post the reports referred to in the preceding paragraphs on its
website within the time periods that would apply if it was required to file
those reports with the SEC.


 


(b)           For
so long as any Notes remain outstanding, the Company and the Guarantors will
furnish to the Holders and to securities analysts and prospective investors,
upon their request, the information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act. 


 


Section 4.04           Compliance
Certificate.


 


(a)           The Company and each Guarantor (to the
extent that such Guarantor is so required under the TIA) will deliver to the
Trustee, within 90 days after the end of each fiscal year, an Officers’
Certificate stating that a review of the activities of the Company and its
Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether the
Company has kept, observed, performed and fulfilled its obligations under this
Supplemental Indenture, and further stating, as to each such Officer signing
such certificate, that to the best of his or her knowledge the Company has
kept, observed, performed and fulfilled each and every covenant contained in
this Supplemental Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions of this Supplemental
Indenture (or, if a Default or Event of Default will have occurred, describing
all such Defaults or Events of Default of which he or she may have knowledge
and what action the Company is taking or proposes to take with respect thereto)
and that to the best of his or her knowledge no event has occurred and remains
in existence by reason of which payments on account of the principal of or
interest, if any, on the Notes is prohibited or if such event has occurred, a
description of the event and what action the Company is taking or proposes to
take with respect thereto.


 


(b)           So
long as not contrary to the then current recommendations of the American
Institute of Certified Public Accountants, the year-end financial statements
delivered pursuant to Section 4.03(a) above will be accompanied by a written
statement of the Company’s independent registered public accountants (who will
be a firm of established national reputation) that in making the examination
necessary for certification of such financial statements, nothing has come to
their attention that would lead them to believe that the Company has violated
any provisions of Article 4 or Article 5 hereof or, if any such violation has
occurred, specifying the nature and period of existence thereof, it being
understood that such accountants will not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.


 


(c)           The
Company will, so long as any of the Notes are outstanding, deliver to the
Trustee, as soon as possible, but in no event later than five days after any
Officer becoming aware of any Default or Event of Default, an Officers’
Certificate specifying such Default or Event of Default and what action the
Company is taking or proposes to take with respect thereto.


 


Section 4.05           Taxes.


 


The Company
will pay, and will cause each of its Subsidiaries to pay, prior to delinquency,
all material taxes, assessments, and governmental levies except such as are
contested in good faith and by appropriate proceedings or where the failure to
effect such payment is not adverse in any material respect to the Holders of
the Notes.


 


40

















 


Section 4.06           Stay,
Extension and Usury Laws.


 


The Company and
each of the Guarantors covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law
wherever enacted, now or at any time hereafter in force, that may affect the covenants
or the performance of this Supplemental Indenture; and the Company and each of
the Guarantors (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and covenants that it will
not, by resort to any such law, hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution
of every such power as though no such law has been enacted.


 


Section 4.07           Restricted
Payments.


 


The Company
will not, and will not permit any of its Restricted Subsidiaries to, directly
or indirectly:  


 


(i) declare or
pay any dividend or make any other payment or distribution on account of the
Company’s Equity Interests, including, without limitation, any payment in
connection with any merger or consolidation involving the Company, or to the
direct or indirect holders of the Company’s Equity Interests in their capacity
as such (other than dividends or distributions payable in Equity Interests,
other than Disqualified Stock, of the Company); 


 


(ii) purchase,
redeem or otherwise acquire or retire for value, including, without limitation,
in connection with any merger or consolidation involving the Company, any
Equity Interests of the Company; 


 


(iii) make any
payment on or with respect to, or purchase, redeem, defease or otherwise
acquire or retire for value any Indebtedness that is subordinated to the Notes
or the Guarantees, except a payment of interest or principal at the Stated
Maturity of such Indebtedness; provided,
that this restriction does not apply to a purchase, redemption or defeasance
made in anticipation of satisfying a sinking fund obligation, principal
installment or final maturity, in each case due within one year of date of such
purchase, redemption or defeasance; or 


 


(iv) make any
Restricted Investment;


 


(all such
payments and other actions set forth in clauses (i) through (iv) above being
collectively referred to as “Restricted
Payments”), 


 


unless, at the
time of and after giving effect to such Restricted Payment:


 


(a)           no
Default or Event of Default will have occurred and be continuing or would occur
as a consequence of such Restricted Payment; and


 


(b)           the
Company would, at the time of such Restricted Payment and after giving pro
forma effect thereto as if such Restricted Payment had been made at the
beginning of the applicable four-quarter period, have been permitted to incur
at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage
Ratio test set forth in the first paragraph of Section 4.09 hereof; and


 


(c)           such
Restricted Payment, together with the aggregate amount of all other Restricted
Payments made by the Company or any of its Restricted Subsidiaries after August
10, 1998, excluding


 


41

















 


Restricted Payments permitted by
clauses (ii), (iii), (iv), (vi) and (x) of the next succeeding paragraph, is
less than the sum, without duplication, of: 


 


(i) 50% of the Consolidated Net Income of the Company for the
period (taken as one accounting period) from the beginning of the first fiscal
quarter commencing August 10, 1998 to the end of the Company’s most
recently ended fiscal quarter for which internal financial statements are
available at the time of such Restricted Payment, or, if such Consolidated Net
Income for such period is a deficit, less 100% of such deficit, plus 


 


(ii) 100% of the aggregate net cash proceeds or the fair
market value of property other than cash received by the Company since August
10, 1998 as a contribution to its common equity capital or from the issue or
sale of Equity Interests of the Company (other than Disqualified Stock), or
from the issue or sale of Disqualified Stock or debt securities of the Company
that have been converted into or exchanged for such Equity Interests, other
than Equity Interests, Disqualified Stock or debt securities sold to a
Restricted Subsidiary of the Company, plus 


 


(iii) to the extent not already included in Consolidated Net
Income of the Company for such period and without duplication, any Restricted
Investment that was made by the Company or any of its Restricted Subsidiaries
after August 10, 1998 is sold for cash or otherwise liquidated or repaid for
cash, or any Unrestricted Subsidiary which is designated as an Unrestricted
Subsidiary subsequent to August 10, 1998 is sold for cash or otherwise
liquidated or repaid for cash or redesignated as a Restricted Subsidiary, 100%
of the cash return of capital with respect to such Restricted Investment or
Unrestricted Subsidiary, less the cost of disposition, if any plus 50% of the
excess of the fair market value of the Company’s Investment in such
Unrestricted Subsidiary as of the date of such redesignation over the amount of
the Restricted Investment that reduced this clause (c); provided, that any amounts that increase
this clause (c) will not duplicatively increase amounts available as Permitted
Investments.


 


The foregoing
provisions will not prohibit:


 


(i)            the payment of any dividend within
60 days after the date of declaration of the dividend, if at the date of
declaration the dividend payment would have complied with the provisions of
this Supplemental Indenture; 


 


(ii)           the making of any Restricted Payment
in exchange for, or out of the net cash proceeds of the substantially
concurrent sale, other than to a Restricted Subsidiary of the Company, of
Equity Interests of the Company, other than Disqualified Stock; provided that the amount of any such net
cash proceeds that are utilized for any such redemption, repurchase,
retirement, defeasance or other acquisition will be excluded from clause (c)
(ii) of the preceding paragraph; 


 


(iii)          the payment, purchase, defeasance,
retirement redemption, repurchase or other acquisition (a) of subordinated
Indebtedness of the Company or any Restricted Subsidiary of the Company with
the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness
or (b) of any Disqualified Stock of the Company in exchange for, or out of the
net cash proceeds of the substantially concurrent sale of, Disqualified Stock
of the Company that is not prohibited by the terms of this Supplemental
Indenture to be issued; 


 


(iv)          the payment of dividends on the
Company’s common stock of up to a combined amount of $30.0 million per annum; provided that up to $10.0 million of such
amount that is not


 


42

















 


utilized
by the Company to pay dividends in any calendar year may be carried forward to
any subsequent year;


 


(v)           (a) the repurchase, redemption or
other acquisition or retirement for value of any Equity Interests of the
Company that are held by any member of the Company’s, or any of its Restricted
Subsidiaries’, management pursuant to any management equity subscription
agreement or stock option agreement or (b) the repurchase of Equity Interests
of the Company or any Restricted Subsidiary of the Company held by employee
benefits plans, whether directly or for employees, directors or former
directors, pursuant to the terms of agreements, other than management equity
subscription agreements or stock option agreements, approved by the Company’s
Board of Directors; provided
that, in the case of foregoing clause (a) the aggregate price paid for all such
repurchased, redeemed, acquired or retired Equity Interests will not exceed
$50.0 million in the aggregate since the date of this Supplemental Indenture
and, in the case of foregoing clause (b), the aggregate purchase price paid for
all such repurchased Equity Interests will not exceed $25.0 million in any
twelve-month period; 


 


(vi)          repurchases of Equity Interests deemed
to occur upon exercise of stock options if such Equity Interests represent a
portion of the exercise price of such options;


 


(vii)         the distribution, as a dividend or
otherwise, of shares of Capital Stock of, or Indebtedness owed to the Company
or a Restricted Subsidiary of the Company by, Unrestricted Subsidiaries; 


 


(viii)        the payment of any dividend by a
Restricted Subsidiary to the holders of all of its Equity Interests on a pro
rata basis; 


 


(ix)           other Restricted Payments in an
aggregate amount since the date of this Supplemental Indenture not to exceed
$100.0 million under this clause (ix); and


 


(x)            other Restricted Payments of the
kind contemplated by clause (i) or (ii) of the definition of
Restricted Payments if, immediately after giving effect to such Restricted
Payment as if it had occurred at the beginning of the Company’s most recently
ended four full fiscal quarters for which internal financial statements are
available, the Company’s Leverage Ratio would have been less than 3.5 to 1.0
and the notes would have been rated Ba3 (or the equivalent thereof) or better
by Moody’s and BB- (or the equivalent thereof) or better by S&P (provided, that if either such entity
ceases to rate the notes for reasons outside of the control of the Company, the
equivalent investment grade credit rating from any other “nationally recognized
statistical rating organization” within the meaning of
Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act selected by the Company as
a replacement agency will be deemed to satisfy the rating requirement for the
rating agency so replaced).


 


provided that, with
respect to clauses (iv), (ix) and (x) above, no Default or Event of Default
will have occurred and be continuing immediately after such transaction or as a
consequence thereof.


 


The amount of
all Restricted Payments, other than cash, will be the fair market value on the
date of the Restricted Payment of the assets or securities proposed to be
transferred or issued by the Company or such Restricted Subsidiary, as the case
may be, pursuant to the Restricted Payment. 
The fair market value of any assets or securities that are required to
be valued by this Section 4.07 will be determined by the Board of Directors of
the Company whose resolution with respect thereto will be delivered to the
Trustee.


 


43

















 


If any
Restricted Investment is sold or otherwise liquidated or repaid or any dividend
or payment is received by the Company or a Restricted Subsidiary of the Company
and such amounts may be credited to clause (c) above, then such amounts will be
credited only to the extent of amounts not otherwise included in Consolidated
Net Income and that do not otherwise increase the amount available as a
Permitted Investment.


 


Section 4.08           Dividends
and Other Payment Restrictions Affecting Restricted Subsidiaries.


 


The Company
will not, and will not permit any of its Restricted Subsidiaries to, directly
or indirectly, create or permit to exist or become effective any consensual
encumbrance or restriction on the ability of any Restricted Subsidiary to:


 


(a)           pay
dividends or make any other distributions on its Capital Stock to the Company
or any of its Restricted Subsidiaries, or with respect to any other interest or
participation in, or measured by, its profits, or pay any Indebtedness owed to
the Company or any of its Restricted Subsidiaries; 


 


(b)           make
loans or advances to the Company or any of its Restricted Subsidiaries; or 


 


(c)           transfer
any of its properties or assets to the Company or any of its Restricted
Subsidiaries.


 


However, the
preceding restrictions do not apply to such encumbrances or restrictions
existing under or by reason of 


 


(a) agreements
governing Existing Indebtedness as in effect on the date of this Supplemental
Indenture; 


 


(b) other
encumbrances and restrictions in effect on the date of this Supplemental
Indenture; 


 


(c) any Credit
Facilities, including the Existing Credit Facilities, as in effect on the date
of this Supplemental Indenture, and any extensions, amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings thereof and other Credit Facilities not prohibited under this
Supplemental Indenture, provided
that such extensions, amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings and other
Credit Facilities are not materially more restrictive, taken as a whole, with
respect to such dividend and other payment restrictions than those contained in
the Existing Credit Facilities as in effect on the date of this Supplemental
Indenture; 


 


(d) the several
indentures governing the Notes, the Existing Notes and the related Guarantees; 


 


(e) applicable
law or any applicable rule, regulation or order; 


 


(f) existing
with respect to any Person or the property or assets of such person acquired by
the Company or any of its Restricted Subsidiaries as in effect at the time of
such acquisition, and not incurred in connection with or in contemplation of
such acquisition, which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the Person, or
the property or assets of the Person, so acquired, provided, that in the case of Indebtedness, such
Indebtedness was permitted by the terms of this Supplemental Indenture to be
incurred;


 


(g) customary
non-assignment provisions in leases or other contracts entered into in the
ordinary course of business;


 


44

















 


(h) purchase
money obligations for property acquired in the ordinary course of business that
impose restrictions on that property of the nature described in clause (c) of
the preceding paragraph;


 


(i)
Indebtedness of Restricted Subsidiaries; provided
that such Indebtedness was not prohibited under this Supplemental Indenture;


 


(j) Permitted
Refinancing Indebtedness; provided
that the restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are not materially more restrictive, taken as a whole,
than those contained in the agreements governing the Indebtedness being
refinanced;


 


(k) Liens
securing Indebtedness otherwise permitted to be incurred under the provisions
of Section 4.12 hereof that limit the right of the debtor to dispose of the
assets subject to such Liens;


 


(l) provisions
with respect to the disposition or distribution of assets or property in joint
venture agreements, asset sale agreements, stock sale agreements and other
similar agreements entered into in the ordinary course of business;


 


(m) any
Purchase Money Note, or other Indebtedness or other contractual requirements of
a Securitization Entity in connection with a Qualified Securitization
Transaction; provided that such
restrictions may apply only to such Securitization Entity;


 


(n) any
restriction with respect to a Restricted Subsidiary imposed pursuant to an
agreement entered into for the sale or disposition of all or substantially all
the Capital Stock or assets of such Restricted Subsidiary pending the closing
of such sale or disposition;


 


(o)
restrictions on cash or other deposits or net worth imposed by customers under
contracts entered into in the ordinary course of business; and 


 


(p) any
encumbrance or restriction of the type referred to in clauses (a) through (c)
of the first paragraph of this Section 4.08 imposed by any extension,
amendment, modification, restatement, renewal, increase, supplement, refunding,
replacement or refinancing of an agreement, contract, instrument or obligation
referred to in clauses (a) through (o) above that is not materially more
restrictive, taken as a whole, than the encumbrance or restriction imposed by
the applicable predecessor agreement, contract, instrument or obligation. 


 


Section 4.09           Incurrence
of Indebtedness and Issuance of Disqualified and Preferred Stock.


 


The Company
will not, and will not permit any of its Restricted Subsidiaries to Incur any
Indebtedness, including Acquired Debt, and the Company will not issue any
Disqualified Stock and will not permit any of its Restricted Subsidiaries to
issue any shares of preferred stock; provided,
however, that the Company may
Incur Indebtedness, including Acquired Debt, or issue Disqualified Stock and
any of the Company’s Restricted Subsidiaries may Incur Indebtedness if the
Company’s Fixed Charge Coverage Ratio for the Company’s most recently ended
four full fiscal quarters for which internal financial statements are available
immediately preceding the date on which such additional Indebtedness is
Incurred or such Disqualified Stock is issued would have been at least 2.0 to
1, determined on a pro forma basis, including a pro forma application of the
net proceeds therefrom, as if the additional Indebtedness had been Incurred, or
the Disqualified Stock had been issued, as the case may be, at the beginning of
such four-quarter period.


 


45

















 


The provisions
of the first paragraph of this Section 4.09 will not prohibit the Incurrence of
any of the following items of Indebtedness, Disqualified Stock or the issuance
of preferred stock, as applicable (collectively, “Permitted Debt”):


 


(i)            the Incurrence by the Company or any
of its Restricted Subsidiaries of Indebtedness under Credit Facilities in an
aggregate principal amount at any one time outstanding under this clause (i),
with letters of credit being deemed to have a principal amount equal to the
maximum potential liability of the Company and its Restricted Subsidiaries
thereunder, not to exceed $2,000 million less
the aggregate amount of all Net Proceeds of Asset Sales applied by the Company
or any of its Restricted Subsidiaries since the date of this Supplemental
Indenture to repay any term Indebtedness under any Credit Facility or to repay
any revolving credit Indebtedness under any Credit Facility pursuant to Section
4.10 hereof;


 


(ii)           the Incurrence by the Company and its
Restricted Subsidiaries of the Existing Indebtedness;


 


(iii)          the Incurrence by the Company and the
Guarantors of Indebtedness represented by the Notes and the Guarantees to be
issued on the date of this Supplemental Indenture;


 


(iv)          the Incurrence by the Company or any
of its Restricted Subsidiaries of Indebtedness represented by Capital Lease
Obligations, mortgage financings or purchase money obligations, in each case,
Incurred for the purpose of financing all or any part of the purchase price or
cost of design, construction or improvement of property, plant or equipment
used in the business of the Company or a Restricted Subsidiary, in an aggregate
principal amount, including all Permitted Refinancing Indebtedness Incurred to
refund, refinance or replace any Indebtedness Incurred pursuant to this clause
(iv), not to exceed 7.5% of Total Assets at any time outstanding;


 


(v)           the Incurrence by the Company or any
of its Restricted Subsidiaries of Permitted Refinancing Indebtedness;


 


(vi)          the Incurrence by the Company or any
of its Restricted Subsidiaries of intercompany Indebtedness between or among
the Company and any of its Restricted Subsidiaries; provided, however,
that: 


 


(i) if the Company or any Guarantor is
the obligor on such Indebtedness, such Indebtedness must be expressly
subordinated to the prior payment in full in cash of all Obligations with
respect to the Notes, in the case of the Company, or any such Guarantor’s
Guarantee, in the case of a Guarantor; and


 


(ii) (a) any subsequent issuance or
transfer of Equity Interests that results in any such Indebtedness being held
by a Person other than the Company or a Restricted Subsidiary of the Company
and (b) any sale or other transfer of any such Indebtedness to a Person that is
not either the Company or a Restricted Subsidiary of the Company will be
deemed, in each case, to constitute an Incurrence of such Indebtedness by the
Company or such Restricted Subsidiary, as the case may be, that was not
permitted by this clause (vi);


 


(vii)         the Incurrence by the Company or any of
its Restricted Subsidiaries of Hedging Obligations that are Incurred in the
normal course of business and not for speculative purposes;


 


46

















 


(viii)        the Incurrence by the Company or any of
its Restricted Subsidiaries of Indebtedness in the ordinary course of business
solely in respect of performance, bid, surety, appeal and similar bonds,
completion or performance guarantees or standby letters of credit (not
supporting Indebtedness for borrowed money) issued for the purpose of
supporting workers’ compensation liabilities of the Company or any of its
Restricted Subsidiaries;


 


(ix)           the Incurrence of Indebtedness
arising from agreements of the Company or a Restricted Subsidiary of the
Company providing for indemnification, adjustment of purchase price or similar
obligations, in each case, Incurred or assumed in connection with the disposition
of any business, assets or a Subsidiary;


 


(x)            the Incurrence by a Restricted
Subsidiary of the Company of Indebtedness in connection with and in
contemplation of, the concurrent disposition of such Restricted Subsidiary to
the stockholders of the Company; provided
that such disposition occurs concurrently with such Incurrence and following
such disposition, neither the Company nor any of its Restricted Subsidiaries
has any liability with respect to such Indebtedness;


 


(xi)           the Incurrence by a Securitization
Entity of Indebtedness in a Qualified Securitization Transaction that is
Non-Recourse Debt with respect to the Company and its Restricted Subsidiaries
(other than Securitization Entities), except for Standard Securitization
Undertakings and Limited Originator Recourse;


 


(xii)          the guarantee by the Company or any
Restricted Subsidiary of Indebtedness of the Company or a Restricted Subsidiary
of the Company that was permitted to be Incurred by another provision of this
Section 4.09;


 


(xiii)         the Incurrence of Indebtedness of the
Company or a Restricted Subsidiary owed to, including obligations in respect of
letters of credit for the benefit of, any Person in connection with workers’
compensation, health, disability or other employee benefits or property, casualty
or liability insurance provided by such Person to the Company or a Restricted
Subsidiary of the Company, pursuant to reimbursement or indemnification
obligations to such Person, in each case Incurred in the ordinary course of
business;


 


(xiv)        the Incurrence of Indebtedness arising
from the honoring by a bank or other financial institution of a check, draft or
similar instrument drawn against insufficient funds in the ordinary course of
business, provided that such
Indebtedness is extinguished within two business days of its Incurrence;


 


(xv)         the issuance of shares of preferred
stock by a Restricted Subsidiary to the Company or another Restricted
Subsidiary; provided that any
subsequent issuance or transfer of any Capital Stock or any other event which
results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary
or any other subsequent transfer of any such shares of preferred stock (except
to the Company or another Restricted Subsidiary) will be deemed in each case to
be an issuance of such shares of preferred stock that was not permitted by this
clause (xv); and


 


(xvi)        the Incurrence by the Company or any of
its Restricted Subsidiaries of additional Indebtedness in an aggregate
principal amount, or accreted value, as applicable, at any time outstanding,
including all Permitted Refinancing Indebtedness Incurred to refund, refinance
or replace any Indebtedness Incurred pursuant to this clause (xvi), not to
exceed $200 million.


 


47

















 


The Company
will not Incur any Indebtedness (including Permitted Debt) that is
contractually subordinated in right of payment to any other Indebtedness of the
Company unless such Indebtedness is also contractually subordinated in right of
payment to the Notes on substantially identical terms; provided, however,
that no Indebtedness of the Company will be deemed to be contractually
subordinated in right of payment to any other Indebtedness of the Company
solely by virtue of being unsecured or by virtue of being secured on first or
junior Lien basis.  


 


For purposes of
determining compliance with this Section 4.09, in the event that an item of
proposed Indebtedness meets the criteria of more than one of the categories of
Permitted Debt described in clauses (i) through (xvi) above, or is
entitled to be Incurred pursuant to the first paragraph of this Section 4.09,
the Company, in its sole discretion, will be permitted to classify such item of
Indebtedness on the date of its Incurrence, or later reclassify such item of Indebtedness,
in any manner that complies with this Section 4.09, except that Indebtedness
under Credit Facilities outstanding on the date on which Notes are first issued
and authenticated under this Supplemental Indenture will initially be deemed to
have been Incurred on such date in reliance on the exception provided by
clause (i) of the definition of Permitted Debt.  


 


The accrual of
interest, the accretion or amortization of original issue discount, the payment
of interest on any Indebtedness in the form of additional Indebtedness with the
same or substantially similar terms, the reclassification of Equity Interests
as Indebtedness due to a change in accounting principles, and the payment of
dividends on Disqualified Stock in the form of additional shares of the same or
a substantially similar class of Disqualified Stock will not be deemed to be an
Incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of
this Section 4.09.  Notwithstanding any other
provision of this covenant, the maximum amount of Indebtedness that the Company
or any Restricted Subsidiary may Incur pursuant to this covenant will not be
deemed to be exceeded solely as a result of fluctuations in exchange rates or
currency values.


 


Section 4.10           Asset
Sales.


 


The Company
will not, and will not permit any of its Restricted Subsidiaries to, consummate
an Asset Sale unless: 


 


(i) the Company
or the Restricted Subsidiary, as the case may be, receives consideration
(including assumption of liabilities) at the time of the Asset Sale at least
equal to the fair market value of the assets or Equity Interests issued or sold
or otherwise disposed of;


 


(ii) the fair
market value is determined by the Company’s Board of Directors or Chief
Financial Officer and evidenced by an Officers’ Certificate delivered to the
Trustee with respect to any Asset Sale determined to have a fair market value
greater than $50 million; and 


 


(iii) at least
75% of the consideration received in the Asset Sale by the Company or such
Restricted Subsidiary is in the form of cash or Cash Equivalents.  For purposes of this provision, each of the
following will be deemed to be cash: 


 


(w) any
liabilities, as shown on the Company’s or such Restricted Subsidiary’s most
recent consolidated balance sheet, of the Company or any Restricted Subsidiary,
other than contingent liabilities and liabilities of the Company that are by
their terms subordinated to the Notes or any Guarantee thereof, that are
assumed by the transferee of any such assets; 


 


(x) any
securities, notes or other obligations received by the Company or any such
Restricted Subsidiary from such transferee that are converted by the Company or
such Restricted


 


48

















 


Subsidiary into
cash within 180 days after the consummation of such Asset Sale, to the extent
of the cash received in that conversion;


 


(y) any
Designated Noncash Consideration received by the Company or any of its
Restricted Subsidiaries in such Asset Sale; provided
that the aggregate fair market value, as determined above, of such Designated
Noncash Consideration, taken together with the fair market value at the time of
receipt of all other Designated Noncash Consideration received pursuant to this
clause (y) less the amount of Net Proceeds previously realized in cash from
prior Designated Noncash Consideration is less than 7.5% of Total Assets at the
time of the receipt of such Designated Noncash Consideration, with the fair
market value of each item of Designated Noncash Consideration being measured at
the time received and without giving effect to subsequent changes in value; and


 


(z) Additional
Assets; 


 


provided,
that this clause (iii) will not be applicable to any sale or other disposition
of all or a portion of the business constituting the aerospace and technologies
segment of the Company.


 


Within 365 days
after the receipt of any Net Proceeds from an Asset Sale, the Company may, at
its option and to the extent the Company elects, apply those Net Proceeds:


 


(a) to repay
Indebtedness and other Obligations under any Credit Facility;


 


(b) to acquire all or substantially all of
the assets of, or any Capital Stock of, another Permitted Business, if, after
giving effect to any such acquisition of Capital Stock, the Permitted Business
is or becomes a Restricted Subsidiary of the Company; 


 


(c) to make a
capital expenditure in a Permitted Business;


 


(d) to acquire
other long-term assets that are used or useful in a Permitted Business; or


 


(e) to make an
Investment in Additional Assets; provided,
that the Company will be deemed to have complied with this clause (e) if,
within 365 days of such Asset Sale, the Company will have entered into a
definitive agreement covering such Investment which is thereafter completed
within 365 days after the first anniversary of such Asset Sale.


 


Pending the
final application of any Net Proceeds, the Company may temporarily reduce
Indebtedness or otherwise invest the Net Proceeds in any manner that is not
prohibited by this Supplemental Indenture.


 


Any Net
Proceeds from Asset Sales that are not applied or invested as provided in the
second preceding paragraph will constitute “Excess
Proceeds.”  When the aggregate
amount of Excess Proceeds exceeds $50.0 million, the Company will make an offer
to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing
provisions similar to those set forth in this Supplemental Indenture with
respect to offers to purchase or redeem with the proceeds of sales of assets
(an “Asset Sale Offer”) to
purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be
purchased out of the Excess Proceeds. 
The offer price in any Asset Sale Offer will be equal to 100% of the
principal amount plus accrued and unpaid interest to the date of purchase, and
will be payable in cash.  If any Excess
Proceeds remain after consummation of an Asset Sale Offer, the Company may use
those Excess Proceeds for any purpose not otherwise prohibited by this Supplemental
Indenture.  If the aggregate principal
amount of Notes and other pari passu
Indebtedness


 


49

















 


tendered
into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee
will select the Notes and such other pari
passu Indebtedness to be purchased on a pro rata basis.  Upon completion of each Asset Sale Offer, the
amount of Excess Proceeds will be reset at zero.


 


Section 4.11           Transactions
With Affiliates.


 


(a)           The
Company will not, and will not permit any of its Restricted Subsidiaries to,
make any payment to, or sell, lease, transfer or otherwise dispose of any of
its properties or assets to, or purchase any property or assets from, or enter
into or make or amend any transaction, contract, agreement, understanding,
loan, advance or guarantee with, or for the benefit of, any Affiliate (each of
the foregoing, an “Affiliate Transaction”),
unless 


 


(1)  
        such Affiliate Transaction
is on terms that are no less favorable to the Company or the relevant
Restricted Subsidiary than those that would have been obtained in a comparable
transaction by the Company or such Restricted Subsidiary with an unrelated
Person; and 


 


(2)  
        the Company delivers to the
Trustee:


 


(A)  
       with respect to any
Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $25 million, a resolution of the Board of
Directors of the Company set forth in an Officers’ Certificate certifying that
such Affiliate Transaction complies with clause (1) above and that such Affiliate
Transaction has been approved by a majority of the disinterested members of the
Board of Directors of the Company; and


 


(B)  
        with respect to any
Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $50 million, an opinion as to the fairness
to the Company of such Affiliate Transaction from a financial point of view
issued by an accounting, appraisal or investment banking firm of national
standing.


 


(b)           The
following items will not be deemed to be Affiliate Transactions and, therefore,
will not be subject to the provisions of Section 4.11(a) hereof:


 


(1)  
        any employment, severance
or termination agreement entered into by the Company or any of its Restricted
Subsidiaries in the ordinary course of business;


 


(2)  
        transactions between or
among the Company and/or its Restricted Subsidiaries;


 


(3)  
        transactions between or
among the Company and/or its Restricted Subsidiaries with Ball Asia Pacific and
Permitted Joint Ventures on terms that are no less favorable to the Company
and/or such Subsidiary than those that would have been obtained in a comparable
transaction by the Company and/or such Subsidiary with an unrelated Person;


 


(4)  
        any sale or other issuance
of Equity Interests, other than Disqualified Stock, to Affiliates of the
Company;


 


(5)  
        Restricted Payments that
are permitted by and Investments that are not prohibited by Section 4.07
hereof;


 


50

















 


(6)  
        fees and compensation paid
to members of the Board of Directors of the Company and its Restricted
Subsidiaries in their capacity as such;


 


(7)  
        advances to employees for
moving, entertainment and travel expenses, drawing accounts and similar
expenditures in the ordinary course of business;


 


(8)  
        fees and compensation paid
to, and indemnity provided on behalf of, officers, directors or employees of
the Company or any of its Restricted Subsidiaries, as determined by the Board
of Directors of the Company or of any such Restricted Subsidiary, to the extent
such fees and compensation are reasonable and customary;


 


(9)  
        transactions effected as
part of a Qualified Securitization Transaction;


 


(10)  
      the grant of stock options or
similar rights to officers, employees, consultants and directors of the Company
and, to the extent otherwise permitted under this Supplemental Indenture, to
any Restricted Subsidiary, pursuant to plans approved by the Board of Directors
of the Company and issuance of securities pursuant thereto; and


 


(11)  
      transactions pursuant to any
arrangement, contract or agreement in existence on the date of this
Supplemental Indenture, as such arrangement may be amended or restated,
renewed, extended, refinanced, refunded or replaced from time to time, provided that any such amendment or
restatement, renewal, extension, refinancing, refund or replacement is on terms
and conditions not materially less favorable to the Company or its Restricted
Subsidiaries taken as a whole than the arrangement, contract or agreement in existence
on the date of this Supplemental Indenture.


 


Section 4.12           Liens.


 


The Company
will not, and will not permit any of its Restricted Subsidiaries to, create,
incur, assume or suffer to exist any Lien of any kind securing Indebtedness,
Attributable Debt, or trade payables, other than Permitted Liens, upon any of
their property or assets, now owned or hereafter acquired, unless all payments
due under this Supplemental Indenture and the Notes are secured on an equal and
ratable basis with the obligations so secured until such time as such
obligations are no longer secured by a Lien.


 


Section 4.13           Business
Activities.


 


The Company
will not, and will not permit any Restricted Subsidiary to, engage in any
business other than Permitted Businesses, except to such extent as would not be
material to the Company and its Restricted Subsidiaries taken as a whole.


 


Section 4.14           Corporate
Existence.


 


Subject to
Articles 5 and 10 hereof, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect (i) its corporate
existence, and the corporate, partnership or other existence of each of its
Restricted Subsidiaries and any Unrestricted Subsidiary with $20 million of net
sales in the most recent twelve month period or assets of $20 million, in
accordance with the respective organizational documents (as the same may be
amended from time to time) of the Company, any Restricted Subsidiary or any
Unrestricted Subsidiary with $20 million of net sales in the most recent twelve
month period or assets of $20 million and (ii) the rights (charter and
statutory), licenses and franchises of the Company, its Restricted Subsidiaries
and any Unrestricted Subsidiary with $20 million


 


51

















 


of
net sales in the most recent twelve month period or assets of $20 million; provided, however, that the Company will
not be required to preserve any such right, license or franchise, or the
corporate, partnership or other existence of any of its Subsidiaries, if the
Board of Directors will determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Subsidiaries,
taken as a whole, and that the loss thereof is not adverse in any material
respect to the Holders of the Notes.


 


Section 4.15           Offer
to Purchase Upon Change of Control.


 


(a)           If
a Change of Control occurs, and the Company does not redeem the Notes as
described in Section 3.07 hereof within 60 days after the Change of Control,
each Holder of Notes will have the right to require the Company to repurchase
all or any part, equal to $1,000 or an integral multiple of $1,000, of that
Holder’s Notes pursuant to the offer described below (the “Change of Control Offer”) at an offer
price in cash equal to 101% of the aggregate principal amount of the Notes
repurchased plus accrued and unpaid interest to the date of purchase (the “Change of Control Payment”).  Within 30 days following any Change of
Control, or, at the Company’s option, prior to the consummation of such Change
of Control but after the public announcement thereof, the Company will mail a
notice to each Holder describing the transaction or transactions that
constitute the Change of Control and offering to repurchase Notes on the date
specified in such notice, which date will be no earlier than 30 days and no
later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”), pursuant
to the procedures required by this Supplemental Indenture and described in such
notice.  The Company will comply with the
requirements of Rule 14e-1 under the Exchange Act and any other securities laws
and regulations thereunder to the extent those laws and regulations are
applicable in connection with the repurchase of the Notes as a result of a Change
of Control.  To the extent that the
provisions of any securities laws or regulations conflict with the Change of
Control provisions of this Supplemental Indenture, the Company will comply with
the applicable securities laws and regulations and will not be deemed to have
breached its obligations under the Change of Control provisions of this
Supplemental Indenture by virtue of such compliance.


 


(b)           On
the Change of Control Payment Date, the Company will, to the extent lawful, 


 


(1)  
        accept for payment all
Notes or portions of the Notes (in integral multiples of $1,000) properly
tendered pursuant to the Change of Control Offer;


 


(2)  
        deposit with the Paying
Agent an amount equal to the Change of Control Payment in respect of all Notes
or portions of the Notes properly tendered; and


 


(3)  
        deliver or cause to be
delivered to the Trustee the Notes properly accepted together with an Officers’
Certificate stating the aggregate principal amount of Notes or portions of the
Notes being purchased by the Company.  


 


The Paying
Agent will promptly mail to each Holder of Notes properly tendered the Change
of Control Payment for such Notes, and the Trustee will promptly authenticate
and mail, or cause to be transferred by book entry, to each Holder a new Note
equal in principal amount to any unpurchased portion of the Notes surrendered,
if any; provided that each new
Note will be in a principal amount of $1,000 or an integral multiple of
$1,000.  The Company will publicly
announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Payment Date.


 


The provisions
described above that require the Company to make a Change of Control Offer
following a Change of Control will be applicable whether or not any other
provisions of this Supplemental Indenture are applicable.  Except as described above with respect to a
Change of Control,


 


52

















 


this
Supplemental Indenture does not contain provisions that permit the Holders of
the Notes to require that the Company repurchase or redeem the Notes in the
event of a takeover, recapitalization or similar transaction.


 


(c)           Notwithstanding
anything to the contrary in this Section 4.15, the Company will not be required
to make a Change of Control Offer upon a Change of Control if a third party
makes the Change of Control Offer in the manner, at the times and otherwise in
compliance with the requirements set forth in this Supplemental Indenture
applicable to a Change of Control Offer made by the Company and purchases all
Notes properly tendered and not withdrawn under the Change of Control Offer.


 


Section 4.16           Additional
Guarantees.


 


If the Company
or any of its Restricted Subsidiaries acquires or creates another Domestic
Subsidiary after the date of this Supplemental Indenture, then that newly
acquired or created Domestic Subsidiary will become a Guarantor and execute and
deliver a supplemental indenture to the Trustee in the form of Exhibit C
within 20 business days of the date on which it was acquired or created; provided, that this Section 4.16 does not
apply to any Subsidiary that has properly been designated as an Unrestricted
Subsidiary in accordance with this Supplemental Indenture for so long as it
continues to constitute an Unrestricted Subsidiary or to any Excluded
Subsidiary for so long as it continues to constitute an Excluded Subsidiary.


 


Section 4.17           Payment
for Consents.


 


The Company
will not, and will not permit any of its Restricted Subsidiaries to, directly
or indirectly, pay or cause to be paid any consideration to or for the benefit
of any Holder of Notes for or as an inducement to any consent, waiver or
amendment of any of the terms or provisions of this Supplemental Indenture or
the Notes unless such consideration is offered to be paid and is paid to all
Holders of the Notes that consent, waive or agree to amend in the time frame
set forth in the solicitation documents relating to such consent, waiver or
agreement.


 


Section 4.18           Sale
and Leaseback Transactions.


 


The Company
will not, and will not permit any of its Restricted Subsidiaries to, enter into
any sale and leaseback transaction; provided
that the Company or any Restricted Subsidiary may enter into a sale and
leaseback transaction if:


 


(i) the Company
or such Restricted Subsidiary, as applicable, could have incurred Indebtedness
in an amount equal to the Attributable Debt relating to such sale and leaseback
transaction pursuant to Section 4.09 hereof;


 


(ii) the gross
cash proceeds of such sale and leaseback transaction are at least equal to the
fair market value, as determined in good faith by the Board of Directors and
set forth in an Officers’ Certificate delivered to the Trustee, of the property
that is the subject of that sale and leaseback transaction; and


 


(iii) the
transfer of assets in that sale and leaseback transaction is permitted by, and
the Company applies the proceeds of such transaction in compliance with,
Section 4.10 hereof.


 


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Section 4.19           Designation
of Restricted and Unrestricted Subsidiaries.


 


The Board of
Directors may designate any Restricted Subsidiary to be an Unrestricted
Subsidiary if that designation would not cause a Default.  If a Restricted Subsidiary is designated as
an Unrestricted Subsidiary, the aggregate fair market value of all outstanding
Investments owned by the Company and its Restricted Subsidiaries in the
Subsidiary properly designated will be deemed to be an Investment made as of
the time of the designation and will reduce the amount available for Restricted
Payments under the first paragraph of Section 4.07 hereof or Permitted
Investments, as determined by the Company. 
That designation will only be permitted if the Investment would be permitted
at that time and if the Restricted Subsidiary otherwise meets the definition of
an Unrestricted Subsidiary.  The Board of
Directors may at any time redesignate any Unrestricted Subsidiary to be a
Restricted Subsidiary if the redesignation would not cause a Default.


 


Section 4.20           Certain
Covenants to Be Suspended Under Certain Conditions.


 


The covenants
set forth in Section 4.01 through Section 4.19, inclusive, of this Supplemental
Indenture will be applicable to the Company (and/or its Restricted
Subsidiaries, as appropriate) except that during any period of time that (i)
the Notes are rated BBB- (or the equivalent thereof) or better by Standard
& Poor’s Ratings Group (“S&P”)
and Baa3 (or the equivalent thereof) or better by Moody’s Investors Service,
Inc. (“Moody’s” and, together
with S&P, the “Rating Agencies”)
(provided that if either such
entity ceases to rate the Notes for reasons outside of the control of the
Company, the equivalent investment grade credit rating from any other “nationally
recognized statistical rating organization” within the meaning of
Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act selected by the Company as
a replacement agency will be deemed to satisfy the rating requirements for the
Rating Agency so replaced) (the “Investment
Grade Ratings”), and (ii) no Default or Event of Default will have
occurred and be continuing, then beginning on that day and continuing at all
times thereafter regardless of any subsequent changes in the rating of the
Notes, the Company and its Subsidiaries will not be subject to the provisions
of this Supplemental Indenture described in Sections 4.07, 4.08, 4.09, 4.10,
4.11, 4.19 and clause (iv) of Section 5.01, (collectively, the “Suspended Covenants”).


 


ARTICLE 5.

SUCCESSORS


 


Section 5.01           Merger,
Consolidation or Sale of Assets.


 


The Company
will not, directly or indirectly: (1) consolidate or merge with or into another
person, whether or not the Company is the surviving corporation, or (2) sell,
assign, transfer, convey or otherwise dispose of all or substantially all of
the properties or assets of the Company and its Restricted Subsidiaries, taken
as a whole, in one or more related transactions, to another Person unless:


 


(i) either: (a)
the Company is the surviving corporation; or (b) the Person formed by or
surviving any such consolidation or merger, if other than the Company, or to
which such sale, assignment, transfer, conveyance or other disposition will
have been made is a corporation organized or existing under the laws of the
United States, any state of the United States or the District of Columbia; 


 


(ii) the Person
formed by or surviving any such consolidation or merger, if other than the
Company, or the Person to which such sale, assignment, transfer, conveyance or
other disposition will have been made assumes all the obligations of the
Company under the Notes and this Supplemental Indenture pursuant to agreements
reasonably satisfactory to the Trustee; 


 


(iii)
immediately after such transaction no Default or Event of Default exists; and 


 


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(iv) either:


 


(a) except in
the case of a merger of the Company with or into a Subsidiary, the Company or
the Person formed by or surviving any such consolidation or merger, if other
than the Company, or to which such sale, assignment, transfer, conveyance or
other disposition will have been made will on the date of such transaction
after giving pro forma effect thereto and any related financing transactions as
if the same had occurred at the beginning of the applicable four-quarter
period, be permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in the first
paragraph of Section 4.09 hereof or 


 


(b) the Fixed
Charge Coverage Ratio for the Company or the Person formed by or surviving any
such consolidation or merger, if other than the Company, or to which such sale,
assignment, transfer, conveyance or other disposition will have been made
would, immediately after giving pro forma effect thereto and any related
financing transactions as if same had occurred at the beginning of the
applicable four-quarter period, not be less than such Fixed Charge Coverage
Ratio for the Company and its Restricted Subsidiaries immediately prior to such
transaction, 


 


provided, however, that clause (iv) above does not
apply if, in the good faith determination of the Board of Directors of the
Company, whose determination will be evidenced by a board resolution, the
purpose of such transactions is to change the state of incorporation of the
Company.  The Company may not, directly
or indirectly, lease all or substantially all of the properties or assets of
the Company and its Restricted Subsidiaries, taken as a whole, in one or more
related transactions, to any other Person. 
The provisions of this Section 5.01 will not apply to a sale,
assignment, transfer, conveyance or other disposition of assets between or
among the Company and its Restricted Subsidiaries.


 


Section 5.02           Successor Corporation Substituted..


 


Upon any
consolidation or merger, or any sale, assignment, transfer, lease, conveyance
or other disposition of all or substantially all of the assets of the Company
in accordance with Section 5.01 hereof, the successor corporation formed by
such consolidation or into or with which the Company is merged or to which such
sale, assignment, transfer, lease, conveyance or other disposition is made will
succeed to, and be substituted for (so that from and after the date of such
consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Supplemental Indenture referring to the “Company” will refer
instead to the successor corporation and not to the Company), and may exercise
every right and power of the Company under this Supplemental Indenture with the
same effect as if such successor Person had been named as the Company herein; provided, however, that the predecessor
Company will not be relieved from the obligation to pay the principal of and
interest on the Notes except in the case of a sale of all of the Company’s
assets that meets the requirements of Section 5.01 hereof.


 


ARTICLE 6.

DEFAULTS AND REMEDIES 


 


Section 6.01           Events of Default.


 


Each of the
following is an “Event of Default:”


 


(a)           default
for 30 days in the payment when due of interest on the Notes;


 


(b)           default
in the payment when due of principal of or premium, if any, on the Notes;


 


55

















 


(c)           the
Company or any of its Restricted Subsidiaries fails to comply with the
provisions of Section 5.01 hereof;


 


(d)           the
Company or any of its Restricted Subsidiaries fails for 30 days after notice
from the Trustee or the Holders of at least 25% of the outstanding principal
amount of the Notes to comply with the provisions of Sections 4.07, 4.09, 4.10
or 4.15 hereof;


 


(e)           the
Company or any of its Restricted Subsidiaries fails for 60 days after notice
from the Trustee or the Holders of at least 25% of the outstanding principal
amount of the Notes to comply with any of the other agreements in this
Supplemental Indenture or the Notes;


 


(f)            the
Company or any of its Restricted Subsidiaries (other than a Securitization
Entity) defaults under any mortgage, indenture or instrument under which there
may be issued or by which there may be secured or evidenced any Indebtedness
for money borrowed by the Company or any of its Restricted Subsidiaries (other
than a Securitization Entity) (or the payment of which is guaranteed by the
Company or any of its Restricted Subsidiaries (other than a Securitization
Entity)) whether such Indebtedness or guarantee now exists, or is created after
the date of this Supplemental Indenture, if that default:


 


(1)  
        is caused by a failure to
pay principal of or premium, if any, or interest on such Indebtedness on or
before the expiration of the grace period provided in such Indebtedness on the
date of such default (a “Payment Default”);
or


 


(2)  
        results in the acceleration
of such Indebtedness prior to its express maturity,


 


and, in each case, the principal
amount of any such Indebtedness, together with the principal amount of any
other such Indebtedness under which there has been a Payment Default or the
maturity of which has been so accelerated, aggregates $50 million or more or
its foreign currency equivalent;


 


(g)           the
Company or any of its Restricted Subsidiaries fails to pay final judgments
aggregating in excess of $50 million or its foreign currency equivalent,
excluding amounts covered by insurance, which judgments are not paid,
discharged or stayed for a period of 60 days; 


 


(h)           the
Company or any of its Significant Subsidiaries that are Restricted Subsidiaries
or any group of Restricted Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary pursuant to or within the meaning of
Bankruptcy Law:


 


(i)            commences a voluntary case,


 


(ii)           consents to the entry of an order for
relief against it in an involuntary case, 



 


(iii)          consents to the appointment of a
custodian of it or for all or substantially all of its property,


 


(iv)          makes a general assignment for the
benefit of its creditors, or


 


(v)           generally is not paying its debts as
they become due; or


 


(i)            a
court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:


 


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(i)            is for relief against the Company or
any of its Significant Subsidiaries that are Restricted Subsidiaries or any
group of Restricted Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary in an involuntary case;


 


(ii)           appoints a custodian of the Company
or any of its Significant Subsidiaries that are Restricted Subsidiaries or any
group of Restricted Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary or for all or substantially all of the property of the
Company or any of its Significant Subsidiaries that are Restricted Subsidiaries
or any group of Restricted Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary; or


 


(iii)          orders the liquidation of the Company
or any of its Significant Subsidiaries that are Restricted Subsidiaries or any
group of Restricted Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary; 


 


and the order
or decree remains unstayed and in effect for 60 consecutive days; or


 


(j)            except
as permitted by this Supplemental Indenture, any Guarantee will be held in any
judicial proceeding to be unenforceable or invalid or will cease for any reason
to be in full force and effect or any Guarantor, or any Person acting on behalf
of any Guarantor, will deny or disaffirm its obligations under its Guarantee.


 


Section 6.02           Acceleration.


 


If any Event of
Default (other than an Event of Default specified in clause (h) or (i) of
Section 6.01 hereof) with respect to the Company, any Significant Subsidiary
that is a Restricted Subsidiary, as applicable, or any group of Restricted
Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary
occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the then outstanding Notes may declare all the Notes to be
due and payable immediately.  Upon any
such declaration, the Notes will become due and payable immediately.  Notwithstanding the foregoing, if an Event of
Default specified in clause (h) or (i) of Section 6.01 hereof occurs with respect
to the Company, any of its Significant Subsidiaries that are Restricted
Subsidiaries or any group of Restricted Subsidiaries that, taken as a whole,
would constitute a Significant Subsidiary, all outstanding Notes will be due
and payable without further action or notice. 
Holders of the Notes may not enforce this Supplemental Indenture or the
Notes except as provided in this Supplemental Indenture. 


 


In the case of
any Event of Default occurring by reason of any willful action (or inaction)
taken (or not taken) by or on behalf of the Company with the intention of
avoiding payment of the premium that the Company would have had to pay if the
Company then had elected to redeem the Notes pursuant to the optional
redemption provisions of this Supplemental Indenture, an equivalent premium
will also become and be immediately due and payable to the extent permitted by
law upon the acceleration of the Notes.  


 


The Company is
required to deliver to the Trustee annually a statement regarding compliance
with this Supplemental Indenture, and the Company is required upon becoming
aware of any Default or Event of Default, to deliver to the Trustee a statement
specifying such Default or Event of Default.


 


Section 6.03           Other
Remedies.


 


If an Event of
Default occurs and is continuing, the Trustee may pursue any available remedy
to collect the payment of principal, premium, if any, and interest on the Notes
or to enforce the performance of any provision of the Notes or this
Supplemental Indenture.


 


57

















 


The Trustee may
maintain a proceeding even if it does not possess any of the Notes or does not
produce any of them in the proceeding.  A
delay or omission by the Trustee or any Holder of a Note in exercising any right
or remedy accruing upon an Event of Default will not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default.  All remedies are cumulative to the extent
permitted by law.


 


Section 6.04           Waiver
of Past Defaults. 


 


The Holders of
a majority in aggregate principal amount of the Notes then outstanding by
notice to the Trustee may on behalf of the Holders of all of the Notes waive
any existing Default or Event of Default and its consequences under this
Supplemental Indenture except a continuing Default or Event of Default in the
payment of interest on, or the principal of, the Notes (including in connection
with an offer to purchase); provided,
however, that the Holders of a
majority in aggregate principal amount of the then outstanding Notes may
rescind an acceleration and its consequences, including any related payment
default that resulted from such acceleration. 
Upon any such waiver, such Default or Event of Default will cease to
exist, and any Event of Default arising therefrom will be deemed to have been
cured for every purpose of this Supplemental Indenture; but no such waiver will
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereon.


 


Section 6.05           Control by Majority.


 


Holders of a majority
in principal amount of the then outstanding Notes may direct the time, method
and place of conducting any proceeding for exercising any remedy available to
the Trustee or exercising any trust or power conferred on it.  However, the Trustee may refuse to follow any
direction that conflicts with law or this Supplemental Indenture that the
Trustee determines may be unduly prejudicial to the rights of other Holders of
Notes or that may involve the Trustee in personal liability.


 


Section 6.06           Limitation on Suits. 


 


A Holder of a
Note may pursue a remedy with respect to this Supplemental Indenture or the
Notes only if:


 


(a)           the
Holder of a Note gives to the Trustee written notice of a continuing Event of
Default;


 


(b)           the
Holders of at least 25% in principal amount of the then outstanding Notes make
a written request to the Trustee to pursue the remedy;


 


(c)           such
Holder of a Note or Holders of Notes offer and, if requested, provide to the
Trustee indemnity satisfactory to the Trustee against any loss, liability or
expense;


 


(d)           the
Trustee does not comply with the request within 60 days after receipt of the
request and the offer and, if requested, the provision of indemnity; and


 


(e)           during
such 60-day period the Holders of a majority in principal amount of the then
outstanding Notes do not give the Trustee a direction inconsistent with the
request.


 


A Holder of a
Note may not use this Supplemental Indenture to prejudice the rights of another
Holder of a Note or to obtain a preference or priority over another Holder of a
Note (it being understood that the Trustee does not have an affirmative duty to
ascertain whether or not such actions or forbearances are unduly prejudicial to
any Holder).


 


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Section 6.07           Rights of Holders of Notes to Receive Payment. 


 


Notwithstanding
any other provision of this Supplemental Indenture, the right of any Holder of
a Note to receive payment of principal, premium and interest on the Note, on or
after the respective due dates expressed in the Note (including in connection
with an offer to purchase), or to bring suit for the enforcement of any such
payment on or after such respective dates, will not be impaired or affected
without the consent of such Holder.


 


Section 6.08           Collection Suit by Trustee.


 


If an Event of
Default specified in Section 6.01(a) or (b) occurs and is continuing, the
Trustee is authorized to recover judgment in its own name and as Trustee of an
express trust against the Company for the whole amount of principal of,
premium, if any, and interest remaining unpaid on the Notes and interest on
overdue principal and, to the extent lawful, interest and such further amount
as will be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.


 


Section 6.09           Trustee May File Proofs of Claim. 


 


The Trustee is
authorized to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including
any claim for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and the Holders of the Notes allowed in
any judicial proceedings relative to the Company (or any other obligor upon the
Notes), its creditors or its property and will be entitled and empowered to
collect, receive and distribute any money or other property payable or
deliverable on any such claims and any custodian in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee, and in the event that the Trustee will consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof.  To the extent that
the payment of any such compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 7.07 hereof out of the estate in any such proceeding, will be
denied for any reason, payment of the same will be secured by a Lien on, and
will be paid out of, any and all distributions, dividends, money, securities
and other properties that the Holders may be entitled to receive in such
proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise.  Nothing herein
contained will be deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the rights of any
Holder, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.


 


Section 6.10           Priorities.



 


If the Trustee
collects any money pursuant to this Article, it will pay out the money in the
following order:


 


First:  to the Trustee, its agents and attorneys for
amounts due under Section 7.07 hereof, including payment of all compensation,
expense and liabilities incurred, and all advances made, by the Trustee and the
costs and expenses of collection;


 


Second:  to Holders of Notes for amounts due and
unpaid on the Notes for principal, premium, if any, and interest, ratably,
without preference or priority of any kind, according to the


 


59

















 


amounts
due and payable on the Notes for principal, premium, if any, and interest, respectively;
and


 


Third:  to the Company.


 


The Trustee may
fix a record date and payment date for any payment to Holders of Notes pursuant
to this Section 6.10.


 


Section 6.11           Undertaking for Costs. 


 


In any suit for
the enforcement of any right or remedy under this Supplemental Indenture or in
any suit against the Trustee for any action taken or omitted by it as a
Trustee, a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the court in
its discretion may assess reasonable costs, including reasonable attorneys’
fees and expenses, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party
litigant.  This Section does not apply to
a suit by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07
hereof, or a suit by Holders of more than 10% in principal amount of the then
outstanding Notes.


 


ARTICLE 7.

TRUSTEE 


 


Section 7.01           Duties
of Trustee.


 


(a)           If
an Event of Default has occurred and is continuing, the Trustee will exercise
such of the rights and powers vested in it by this Supplemental Indenture, and
use the same degree of care and skill in its exercise, as a prudent person
would exercise or use under the circumstances in the conduct of his or her own
affairs.


 


(b)           Except
during the continuance of an Event of Default:


 


(i)            the
duties of the Trustee will be determined solely by the express provisions of
this Supplemental Indenture and the Trustee need perform only those duties that
are specifically set forth in this Supplemental Indenture and no others, and no
implied covenants or obligations will be read into this Supplemental Indenture
against the Trustee; and


 


(ii)           in the absence of bad faith on its
part, the Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of this
Supplemental Indenture, but in the case of any such certificates of opinions
which by any provision hereof are specifically required to be furnished to the
Trustee, the Trustee will be under a duty to examine the same to determine
whether or not they conform to the requirements of this Supplemental Indenture
(but need not confirm or investigate the accuracy of mathematical calculations
or other facts stated therein).


 


(c)           The
Trustee may not be relieved from liabilities for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:


 


(i)            this
paragraph does not limit the effect of paragraph (b) of this Section;


 


60

















 


(ii)           the Trustee will not be liable for any
error of judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent facts; and


 


(iii)          the Trustee will not be liable with
respect to any action it takes or omits to take in good faith in accordance
with a direction received by it pursuant to Section 6.05 hereof.


 


(d)           Whether
or not therein expressly so provided, every provision of this Supplemental
Indenture that in any way relates to the Trustee is subject to paragraphs (a),
(b), (c), (e) and (f) of this Section and Section 7.02.


 


(e)           No
provision of this Supplemental Indenture will require the Trustee to expend or
risk its own funds or incur any liability. 
The Trustee will be under no obligation to exercise any of its rights
and powers under this Supplemental Indenture at the request of any Holders,
unless such Holder will have offered to the Trustee security and indemnity
satisfactory to it against any loss, liability or expense.


 


(f)            The
Trustee will not be liable for interest on any money received by it except as
the Trustee may agree in writing with the Company.  Money held in trust by the Trustee need not
be segregated from other funds except to the extent required by law.


 


Section 7.02           Rights
of Trustee.


 


(a)           The
Trustee may conclusively rely upon any document believed by it to be genuine
and to have been signed or presented by the proper Person.  The Trustee need not investigate any fact or
matter stated in the document.


 


(b)           Before
the Trustee acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel or both. 
The Trustee will not be liable for any action it takes or omits to take
in good faith in reliance on such Officers’ Certificate or Opinion of
Counsel.  The Trustee may consult with counsel
of its selection and the advice of such counsel or any Opinion of Counsel will
be full and complete authorization and protection from liability in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.


 


(c)           The
Trustee may act through its attorneys and agents and will not be responsible
for the misconduct or negligence of any agent appointed with due care.


 


(d)           The
Trustee will not be liable for any action it takes or omits to take in good
faith that it believes to be authorized or within the rights or powers
conferred upon it by this Supplemental Indenture.


 


(e)           Unless
otherwise specifically provided in this Supplemental Indenture, any demand,
request, direction or notice from the Company or any Guarantor will be
sufficient if signed by an Officer of the Company or Guarantor issuing such
demand, request or notice.


 


(f)            The
Trustee will be under no obligation to exercise any of the rights or powers
vested in it by this Supplemental Indenture at the request or direction of any
of the Holders unless such Holders will have offered to the Trustee reasonable
security or indemnity satisfactory to it against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction.


 


(g)           Whenever
in the administration of this Supplemental Indenture, the Trustee will deem it
desirable that a matter be proved or established prior to taking, suffering or
omitting any action hereunder,


 


61

















 


the Trustee (unless other evidence be
herein specifically prescribed) may, in the absence of bad faith on its part,
conclusively rely upon an Officers’ Certificate.


 


(h)           The
Trustee will not be deemed to have notice of any Default or Event of Default
unless a Responsible Officer of the Trustee has actual knowledge thereof or
unless written notice of any event which is in fact such a Default or Event of
Default is received by the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the Notes and this Supplemental Indenture.


 


(i)            The
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney at the
sole cost of the Company and shall incur no liability or additional liability
of any kind by reason of such inquiry or investigation.


 


(j)            In
no event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited
to, loss of profit) irrespective of whether the Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of action.


 


(k)           The
rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to,
and will be enforceable by, the Trustee in each of its capacities hereunder,
and to each agent, custodian and other Person employed to act hereunder.


 


(l)            The
Trustee may request that the Company deliver an Officers’ Certificate setting
forth the names of individuals and/or titles of officers authorized at such
time to take specified actions pursuant to this Supplemental Indenture, which
Officers’ Certificate may be signed by any person authorized to sign an Officers’
Certificate, including any person as so authorized in any such certificate
previously delivered and not superseded..


 


Section 7.03           Individual Rights of Trustee.


 


The Trustee in
its individual or any other capacity may become the owner or pledgee of Notes
and may otherwise deal with the Company or any Affiliate of the Company with
the same rights it would have if it were not Trustee.  However, in the event the Trustee acquires
any conflicting interest it must eliminate such conflict within 90 days, apply
to the SEC for permission to continue as Trustee or resign.  Any Agent may exercise the same rights, with
the same duties, as the Trustee under this Section 7.03.  The Trustee is also subject to Sections 7.10
and 7.11 hereof.


 


Section 7.04           Trustee’s
Disclaimer.


 


The Trustee
will not be responsible for and makes no representation as to the validity or
adequacy of this Supplemental Indenture or the Notes, it will not be
accountable for the Company’s use of the proceeds from the Notes or any money
paid to the Company or upon the Company’s direction under any provision of this
Supplemental Indenture, it will not be responsible for the use or application
of any money received by any Paying Agent other than the Trustee, and it will
not be responsible for any statement or recital herein or any statement in the
Notes or any other document in connection with the sale of the Notes or
pursuant to this Supplemental Indenture other than its certificate of
authentication.


 


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Section 7.05           Notice
of Defaults.


 


If a Default or
Event of Default occurs and is continuing and if it is actually known to a
Responsible Officer of the Trustee, the Trustee will mail to Holders of Notes a
notice of the Default or Event of Default within 90 days after it occurs.  Except in the case of a Default or Event of
Default relating to the payment of principal of or interest on any Note, the
Trustee may withhold the notice from Holders of the Notes if and so long as a
committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of the Holders of the Notes.


 


Section 7.06           Reports
by Trustee to Holders of the Notes.


 


Within 60 days
after each May 15 beginning with the May 15 following the date of this
Supplemental Indenture, and for so long as Notes remain outstanding, the
Trustee will mail to the Holders of the Notes a brief report dated as of such
reporting date that complies with TIA Section 313(a) (but if no event described
in TIA Section 313(a) has occurred within the twelve months preceding the
reporting date, no report need be transmitted). 
The Trustee also will comply with TIA Section 313(b)(2).  The Trustee will also transmit by mail all
reports as required by TIA Section 313(c).


 


A copy of each
report at the time of its mailing to the Holders of Notes will be mailed to the
Company and filed with the SEC and each stock exchange on which the Notes are
listed in accordance with TIA Section 313(d). 
The Company will promptly notify the Trustee when the Notes are listed
on any stock exchange or delisted therefrom.


 


Section 7.07           Compensation
and Indemnity.


 


The Company and
the Guarantors will pay to the Trustee from time to time such reasonable
compensation as agreed upon in writing for its acceptance of this Supplemental
Indenture and services hereunder.  The
Trustee’s compensation will not be limited by any law on compensation of a
Trustee of an express trust.  The Company
and the Guarantors will reimburse the Trustee promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by it in addition to the
compensation for its services.  Such
expenses will include the reasonable compensation, disbursements and expenses
of the Trustee’s agents and counsel.


 


The Company and
the Guarantors will indemnify the Trustee against any and all losses,
liabilities, claims, damages or expenses (including taxes other than taxes
based upon the income of the Trustee) incurred by it arising out of or in
connection with the acceptance or administration of its duties under this
Supplemental Indenture, including the costs and expenses of enforcing this
Supplemental Indenture against the Company and the Guarantors (including this
Section 7.07) and defending itself against any claim (whether asserted by the
Company and the Guarantors or any Holder or any other person) or liability in
connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent any such loss, liability or expense may be
attributable to its negligence or willful misconduct.  The Trustee will notify the Company promptly
of any claim for which it may seek indemnity. 
Failure by the Trustee to so notify the Company will not relieve the
Company and the Guarantors of its obligations hereunder.  The Company will defend the claim and the
Trustee will cooperate in the defense. 
The Trustee may have separate counsel and the Company will pay the
reasonable fees and expenses of such counsel. 
The Company need not pay for any settlement made without its consent,
which consent will not be unreasonably withheld.


 


The obligations
of the Company and the Guarantors under this Section 7.07 will survive the
satisfaction and discharge of this Supplemental Indenture.


 


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To secure the
Company’s and the Guarantors’ payment obligations in this Section, the Trustee
will have a Lien prior to the Notes on all money or property held or collected
by the Trustee, except that held in trust to pay principal and interest on
particular Notes.  Such Lien will survive
the satisfaction and discharge of this Supplemental Indenture.


 


When the
Trustee incurs expenses or renders services after an Event of Default specified
in Section 6.01(g) or (h) hereof occurs, the expenses and the compensation for
the services (including the fees and expenses of its agents and counsel) are
intended to constitute expenses of administration under any Bankruptcy Law.


 


The Trustee
will comply with the provisions of TIA Section 313(b)(2) to the extent
applicable.


 


Section 7.08           Replacement
of Trustee.


 


A resignation
or removal of the Trustee and appointment of a successor Trustee will become
effective only upon the successor Trustee’s acceptance of appointment as
provided in this Section.


 


The Trustee may
resign in writing at any time and be discharged from the trust hereby created
by so notifying the Company.  The Holders
of Notes of a majority in principal amount of the then outstanding Notes may
remove the Trustee by so notifying the Trustee and the Company in writing.  The Company may remove the Trustee if:


 


(a)           the
Trustee fails to comply with Section 7.10 hereof;


 


(b)           the
Trustee is adjudged a bankrupt or an insolvent or an order for relief is
entered with respect to the Trustee under any Bankruptcy Law;


 


(c)           a
custodian or public officer takes charge of the Trustee or its property; or


 


(d)           the
Trustee becomes incapable of acting.


 


If the Trustee
resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, the Company will promptly appoint a successor Trustee.  Within one year after the successor Trustee
takes office, the Holders of a majority in principal amount of the then
outstanding Notes may appoint a successor Trustee to replace the successor
Trustee appointed by the Company.


 


If a successor
Trustee does not take office within 60 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Company, or the Holders of Notes of at
least 10% in principal amount of the then outstanding Notes may petition at the
expense of the Company any court of competent jurisdiction for the appointment
of a successor Trustee.


 


If the Trustee,
after written request by any Holder of a Note who has been a Holder of a Note
for at least six months, fails to comply with Section 7.10, such Holder of a
Note may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.


 


A successor
Trustee will deliver a written acceptance of its appointment to the retiring Trustee
and to the Company.  Thereupon, the
resignation or removal of the retiring Trustee will become effective, and the
successor Trustee will have all the rights, powers and duties of the Trustee
under this Supplemental Indenture.  The
successor Trustee will mail a notice of its succession to Holders of the
Notes.  The retiring Trustee will
promptly transfer all property held by it as Trustee to the successor Trustee, provided all sums owing to the Trustee
(including its agents and/or counsel) hereunder have been


 


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paid and subject to the Lien provided for in
Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant to
this Section 7.08, the Company’s obligations under Section 7.07 hereof will
continue for the benefit of the retiring Trustee.


 


Section 7.09           Successor Trustee by Merger, Etc.


 


If
the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act will be the successor Trustee.


 


Section 7.10           Eligibility; Disqualification.


 


There
will at all times be a Trustee hereunder that is a corporation organized and
doing business under the laws of the United States of America or of any state
thereof that is authorized under such laws to exercise corporate Trustee power,
that is subject to supervision or examination by federal or state authorities
and that has a combined capital and surplus of at least $100 million as set
forth in its most recent published annual report of condition.


 


This
Supplemental Indenture will always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).


 


Section 7.11           Preferential Collection of Claims Against Company.


 


The
Trustee is subject to TIA Section 311(a), excluding any creditor relationship
listed in TIA Section 311(b). A Trustee who has resigned or been removed will
be subject to TIA Section 311(a) to the extent indicated therein.


 


Section 7.12           Trustee’s Application for Instructions from the
Company.


 


Any
application by the Trustee for written instructions from the Company may, at
the option of the Trustee, set forth in writing any action proposed to be taken
or omitted by the Trustee under this Supplemental Indenture and the date on
and/or after which such action will be taken or such omission will be
effective. The Trustee will not be liable for any action taken by, or omission
of, the Trustee in accordance with a proposal included in such application on
or after the date specified in such application (which date will not be less
than three Business Days after the date any officer of the Company actually
receives such application, unless any such officer will have consented in
writing to any earlier date) unless prior to the taking of such action (or the
effective date in the case of an omission), the Trustee will have received
written instructions in response to such application specifying the action to
be taken or omitted.


 


ARTICLE
8.

LEGAL DEFEASANCE AND COVENANT DEFEASANCE


 


Section 8.01           Option to Effect Legal Defeasance or Covenant
Defeasance.


 


The
Company may, at the option of its Board of Directors evidenced by a resolution
set forth in an Officers’ Certificate, at any time, elect to have either
Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon compliance
with the conditions set forth below in this Article 8.


 


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Section 8.02           Legal Defeasance and Discharge.


 


Upon
the Company’s exercise under Section 8.01 hereof of the option applicable to
this Section 8.02, the Company and the Guarantors will, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to
have been discharged from its obligations with respect to all outstanding Notes
and to have each Guarantor’s obligation discharged with respect to its
Guarantee on the date the conditions set forth below are satisfied
(hereinafter, “Legal Defeasance”).
For this purpose, Legal Defeasance means that the Company and the Guarantors
will be deemed to have paid and discharged the entire Indebtedness represented
by the outstanding Notes, which will thereafter be deemed to be “outstanding”
only for the purposes of Section 8.05 hereof and the other Sections of this
Supplemental Indenture referred to in (a) and (b) below, and to have satisfied
all its other obligations under such Notes and this Supplemental Indenture (and
the Trustee, on demand of and at the expense of the Company, will execute
proper instruments acknowledging the same), except for the following provisions
which will survive until otherwise terminated or discharged hereunder:  (a) the rights of Holders of outstanding
Notes to receive solely from the trust fund described in Section 8.04 hereof,
and as more fully set forth in such Section, payments in respect of the
principal of, interest on such Notes when such payments are due, (b) the
Company’s obligations with respect to the Notes under Article 2 and Section
4.02 hereof, (c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Company’s and the Guarantors’ obligations in
connection therewith and (d) this Article 8. Subject to compliance with this
Article 8, the Company may exercise its option under this Section 8.02
notwithstanding the prior exercise of its option under Section 8.03 hereof.


 


Section 8.03           Covenant Defeasance.


 


Upon
the Company’s exercise under Section 8.01 hereof of the option applicable to
this Section 8.03, the Company and each Restricted Subsidiary will, subject to
the satisfaction of the conditions set forth in Section 8.04 hereof, be
released from their obligations under the covenants contained in Sections 3.09,
4.03, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17 and 4.19 and
clause (iv) of Section 5.01 hereof with respect to the outstanding Notes on and
after the date the conditions set forth in Section 8.04 are satisfied
(hereinafter, “Covenant Defeasance”),
and the Notes will thereafter be deemed not “outstanding” for the purposes of
any direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but will
continue to be deemed “outstanding” for all other purposes hereunder (it being
understood that such Notes will not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to
the outstanding Notes, the Company, each Guarantor and each Restricted
Subsidiary may omit to comply with and will have no liability in respect of any
term, condition or limitation set forth in any such covenant, whether directly
or indirectly, by reason of any reference elsewhere herein to any such covenant
or by reason of any reference in any such covenant to any other provision
herein or in any other document and such omission to comply will not constitute
a Default or an Event of Default under Section 6.01 hereof, but, except as
specified above, the remainder of this Supplemental Indenture and such Notes
will be unaffected thereby. In addition, upon the Company’s exercise under
Section 8.01 hereof of the option applicable to this Section 8.03 hereof,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
Sections 6.01(d) through 6.01(f) hereof will not constitute Events of Default.


 


Section 8.04           Conditions to Legal or Covenant Defeasance.


 


The
following will be the conditions to the application of either Section 8.02 or
8.03 hereof to the outstanding Notes:


 


In
order to exercise either Legal Defeasance or Covenant Defeasance:


 


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(a)           the Company must irrevocably deposit
with the Trustee, in trust, for the benefit of the Holders, cash in United
States dollars, non-callable Government Securities, or a combination of cash in
U.S. dollars and non-callable Government Securities in such amounts as will be
sufficient, in the opinion of a nationally recognized investment bank,
appraisal firm of independent public accountants, to pay the principal of, or
interest and premium, if any, on the outstanding Notes on the Stated Maturity
or on the applicable redemption date, as the case may be, and the Company must
specify whether the Notes are being defeased to maturity or to a particular
redemption date;


 


(b)           in the case of an election under
Section 8.02 hereof, the Company will have delivered to the Trustee an Opinion
of Counsel reasonably acceptable to the Trustee confirming that (A) the Company
has received from, or there has been published by, the Internal Revenue Service
a ruling or (B) since the date of this Supplemental Indenture, there has been a
change in the applicable U.S. federal income tax law, in either case to the
effect that, and based thereon such Opinion of Counsel will confirm that, the
Holders of the outstanding Notes will not recognize income, gain or loss for
U.S. federal income tax purposes as a result of such Legal Defeasance and will
be subject to U.S. federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such Legal Defeasance had
not occurred;


 


(c)           in the case of an election under
Section 8.03 hereof, the Company will have delivered to the Trustee an Opinion
of Counsel reasonably acceptable to the Trustee confirming that the Holders of
the outstanding Notes will not recognize income, gain or loss for U.S. federal
income tax purposes as a result of such Covenant Defeasance and will be subject
to U.S. federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such Covenant Defeasance had not
occurred;


 


(d)           no Default or Event of Default will
have occurred and be continuing on the date of such deposit, other than a
Default or Event of Default resulting from the incurrence of Indebtedness all
or a portion of the proceeds of which will be used to defease the Notes
pursuant to this Article 8 concurrently with such incurrence, or insofar as
Sections 6.01(h) or 6.01(i) hereof is concerned, at any time in the period
ending on the 91st day after the date of deposit;


 


(e)           such Legal Defeasance or Covenant
Defeasance will not result in a breach or violation of, or constitute a default
under, any material agreement or instrument, other than this Supplemental
Indenture, to which the Company or any of its Subsidiaries is a party or by
which the Company or any of its Subsidiaries is bound;


 


(f)            the Company will have delivered to
the Trustee an Officers’ Certificate stating that the deposit was not made by
the Company with the intent of preferring the Holders of the Notes over the
other creditors of the Company with the intent of defeating, hindering,
delaying or defrauding creditors of the Company or others; and


 


(g)           the Company will have delivered to
the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating
that all conditions precedent relating to the Legal Defeasance or the Covenant
Defeasance have been complied with.


 


Section 8.05           Deposited Money and Government Securities to Be Held
in Trust; Other Miscellaneous Provisions.


 


Subject
to Section 8.06 hereof, all money and non-callable Government Securities
(including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 hereof
in respect of the outstanding Notes will be


 


67

















 


held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Supplemental Indenture,
to the payment, either directly or through any Paying Agent (including the
Company acting as Paying Agent) as the Trustee may determine, to the Holders of
such Notes of all sums due and to become due thereon in respect of principal,
premium, if any, and interest, but such money need not be segregated from other
funds except to the extent required by law.


 


The
Company and the Guarantors will pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to Section 8.04 hereof or the
principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of the
outstanding Notes.


 


Anything
in this Article 8 to the contrary notwithstanding, the Trustee will deliver or
pay to the Company from time to time upon the request of the Company any money
or non-callable Government Securities held by it as provided in Section 8.04
hereof which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the Trustee (which may be the opinion delivered under Section 8.04(a) hereof),
are in excess of the amount thereof that would then be required to be deposited
to effect an equivalent Legal Defeasance or Covenant Defeasance.


 


Section 8.06           Repayment to Company.


 


Any
money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of, premium, if any, or
interest on any Note and remaining unclaimed for two years after such
principal, and premium, if any, or interest has become due and payable will be
paid to the Company on its request or (if then held by the Company) will be
discharged from such trust; and the Holder of such Note will thereafter look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, will thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the reasonable expense
of the Company cause to be published once, in the New York Times and The Wall
Street Journal (national edition), notice that such money remains unclaimed and
that, after a date specified therein, which will not be less than 30 days from
the date of such notification or publication, any unclaimed balance of such
money then remaining will be repaid to the Company.


 


Section 8.07           Reinstatement.


 


If
the Trustee or Paying Agent is unable to apply any United States dollars or
non-callable Government Securities in accordance with Section 8.02 or 8.03
hereof, as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company’s obligations under this Supplemental Indenture
and the Notes will be revived and reinstated as though no deposit had occurred
pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section
8.02 or 8.03 hereof, as the case may be; provided,
however, that, if the Company makes any payment of principal of,
premium, if any, or interest on any Note following the reinstatement of its
obligations, the Company will be subrogated to the rights of the Holders of
such Notes to receive such payment from the money held by the Trustee or Paying
Agent.


 


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ARTICLE
9.

AMENDMENT, SUPPLEMENT AND WAIVER


 


Section 9.01           Without Consent of Holders of Notes.


 


Notwithstanding
Section 9.02 of this Supplemental Indenture, the Company, the Guarantors and
the Trustee may amend or supplement this Supplemental Indenture, the Guarantees
or the Notes without the consent of any Holder of a Note:


 


(a)           to cure any ambiguity, defect or
inconsistency;


 


(b)           to provide for uncertificated Notes
in addition to or in place of certificated Notes;


 


(c)           to provide for the assumption of the
Company’s obligations to the Holders of the Notes in the case of merger or
consolidation or sale of all or substantially all of the Company’s assets;


 


(d)           to make any change that would provide
any additional rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights under this Supplemental Indenture of any
Holder of the Notes;


 


(e)           to comply with requirements of the
SEC in order to effect or maintain the qualification of this Supplemental
Indenture under the TIA;


 


(f)            to provide for the issuance of
Additional Notes in accordance with this Supplemental Indenture;


 


(g)           to conform the text of this
Supplemental Indenture, the Notes or the Guarantees to any provision of the
“Description of the Notes” section of the Company’s Prospectus Supplement dated
March 7, 2006, relating to the initial offering of the Notes, to the extent
that such provision in the “Description of the Notes” was intended to be a
verbatim recitation of a provision of this Supplemental Indenture, the Notes or
the Guarantees;


 


(h)           to allow any Guarantor to execute a
supplemental indenture and/or a Guarantee with respect to the Notes;


 


(i)            to evidence and provide for the
acceptance of appointment by a successor trustee;


 


(j)            to add guarantees with respect to
the Notes;


 


(k)           to secure the Notes; or


 


(l)            to release any Lien granted in favor
of the Holders of the Notes pursuant to Section 4.09 hereof upon release of the
Lien securing the underlying obligation that gave rise to such Lien.


 


Upon
the request of the Company accompanied by a resolution of its Board of
Directors authorizing the execution of any such amended or supplemental
indenture, and upon receipt by the Trustee of the documents described in
Section 7.02 hereof, the Trustee will join with the Company and the Guarantors
in the execution of any amended or supplemental indenture authorized or
permitted by the terms of this Supplemental Indenture and to make any further
appropriate agreements and stipulations that may be therein contained, but the
Trustee will not be obligated to enter into such amended or


 


69

















 


supplemental indenture that affects its own
rights, duties or immunities under this Supplemental Indenture or otherwise.


 


Section 9.02           With Consent of Holders of Notes.


 


Except
as provided below in this Section 9.02, the Company, the Guarantors and the
Trustee may amend or supplement this Supplemental Indenture (including Sections
3.09, 4.10 and 4.15 hereof), the Guarantees and the Notes with the consent of
the Holders of at least a majority in principal amount of the Notes then
outstanding voting as a single class, including, without limitation, consents
obtained in connection with a tender offer or exchange offer for, or purchase
of, the Notes, and, subject to Sections 6.04 and 6.07 hereof, any existing
Default or Event of Default (other than a Default or Event of Default in the
payment of the principal of, premium, if any, or interest on the Notes, except
a payment default resulting from an acceleration that has been rescinded) or
compliance with any provision of this Supplemental Indenture, the Guarantees or
the Notes may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Notes, including, without limitation,
consents obtained in connection with a tender offer or exchange offer for, or
purchase of, the Notes. Section 2.08 hereof will determine which Notes are
considered to be “outstanding” for purposes of this Section 9.02.


 


Upon
the request of the Company accompanied by a resolution of its Board of
Directors authorizing the execution of any such amended or supplemental
indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt
by the Trustee of the documents described in Section 7.02 hereof, the Trustee
will join with the Company in the execution of such amended or supplemental
indenture unless such amended or supplemental indenture directly affects the
Trustee’s own rights, duties or immunities under this Supplemental Indenture or
otherwise, in which case the Trustee may in its discretion, but will not be
obligated to, enter into such amended or supplemental indenture.


 


It
will not be necessary for the consent of the Holders of Notes under this
Section 9.02 to approve the particular form of any proposed amendment or
waiver, but it will be sufficient if such consent approves the substance of the
proposed amendment or waiver.


 


After
an amendment, supplement or waiver under this Section becomes effective, the
Company will mail to the Holders of Notes affected thereby a notice briefly
describing the amendment, supplement or waiver. Any failure of the Company to
mail such notice, or any defect therein, will not, however, in any way impair or
affect the validity of any such amended or supplemental indenture or waiver.
Subject to Sections 6.04 and 6.07 hereof, the Holders of a majority in
aggregate principal amount of the Notes then outstanding voting as a single
class may waive compliance in a particular instance by the Company with any
provision of this Supplemental Indenture or the Notes. However, without the
consent of each Holder affected, an amendment, supplement or waiver under this
Section 9.02 may not, with respect to any Notes held by a non-consenting
Holder:


 


(a)           reduce the principal amount of Notes
whose Holders must consent to an amendment, supplement or waiver;


 


(b)           reduce the principal of or change the
fixed maturity of any Note or alter or waive any of the provisions with respect
to the redemption of the Notes except as provided above with respect to
Sections 3.09, 4.10 and 4.15 hereof;


 


(c)           reduce the rate of or change the time
for payment of interest, including default interest, on any Note;


 


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(d)           waive a Default or Event of Default
in the payment of principal of or premium, if any, or interest on the Notes,
except a rescission of acceleration of the Notes by the Holders of at least a
majority in aggregate principal amount of the then outstanding Notes and a
waiver of the payment default that resulted from such acceleration:


 


(e)           make any Note payable in money other
than that stated in the Notes;


 


(f)            make any change in the provisions of
this Supplemental Indenture relating to waivers of past Defaults or the rights
of Holders of the Notes to receive payments of principal of or premium,
interest on the Notes;


 


(g)           make any change in the foregoing
amendment and waiver provisions; or


 


(h)           release any Guarantor from any of its
Obligations under its Guarantee or this Supplemental Indenture, except in
accordance with the terms of this Supplemental Indenture.


 


Section 9.03           Compliance With Trust Indenture Act.


 


Every
amendment or supplement to this Supplemental Indenture or the Notes will be set
forth in a amended or supplemental indenture that complies with the TIA as then
in effect.


 


Section 9.04           Revocation and Effect of Consents.


 


Until
an amendment, supplement or waiver becomes effective, a consent to it by a
Holder of a Note is a continuing consent by the Holder of a Note and every
subsequent Holder of a Note or portion of a Note that evidences the same debt
as the consenting Holder’s Note, even if notation of the consent is not made on
any Note. However, any such Holder of a Note or subsequent Holder of a Note may
revoke the consent as to its Note if the Trustee receives written notice of
revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance with
its terms and thereafter binds every Holder.


 


Section 9.05           Notation on or Exchange of Notes.


 


The
Trustee may place an appropriate notation about an amendment, supplement or
waiver on any Note thereafter authenticated. The Company in exchange for all Notes
may issue and the Trustee will, upon receipt of an Authentication Order,
authenticate new Notes that reflect the amendment, supplement or waiver.


 


Failure
to make the appropriate notation or issue a new Note will not affect the
validity and effect of such amendment, supplement or waiver.


 


Section
9.06           Trustee to Sign Amendments, Etc


 


The
Trustee will sign any amended, restated or supplemental indenture authorized
pursuant to this Article 9 if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The
Company may not sign an amendment or supplemental indenture until the Board of
Directors approves it. In executing any amended, restated or supplemental
indenture, the Trustee will be entitled to receive and (subject to Section 7.01
hereof) will be fully protected in relying upon, in addition to the documents
required by Section 12.04 hereof, an Officers’ Certificate and an Opinion of
Counsel stating that the execution of such amended, restated or supplemental
indenture is authorized or permitted by this Supplemental Indenture.


 


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ARTICLE
10.

NOTE GUARANTEES


 


Section 10.01         Guarantee.


 


Subject
to this Article 10, each of the Guarantors hereby, jointly and severally,
unconditionally guarantees to each Holder of a Note authenticated and delivered
by the Trustee and to the Trustee and its successors and assigns, irrespective
of the validity and enforceability of this Supplemental Indenture, the Notes or
the obligations of the Company hereunder or thereunder, that:  (a) the principal of and interest on the
Notes will be promptly paid in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest on the overdue principal of
and interest on the Notes, if any, if lawful, and all other obligations of the
Company to the Holders or the Trustee hereunder or thereunder will be promptly
paid in full or performed, all in accordance with the terms hereof and thereof;
and (b) in case of any extension of time of payment or renewal of any Notes or
any of such other obligations, that same will be promptly paid in full when due
or performed in accordance with the terms of the extension or renewal, whether
at stated maturity, by acceleration or otherwise. Failing payment when due of
any amount so guaranteed or any performance so guaranteed for whatever reason,
the Guarantors will be jointly and severally obligated to pay the same
immediately. Each Guarantor agrees that this is a guarantee of payment and not
a guarantee of collection.


 


The
Guarantors hereby agree that their obligations hereunder will be unconditional,
irrespective of the validity, regularity or enforceability of the Notes or this
Supplemental Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any provisions
hereof or thereof, the recovery of any judgment against the Company, any action
to enforce the same or any other circumstance which might otherwise constitute
a legal or equitable discharge or defense of a Guarantor. Each Guarantor hereby
waives diligence, presentment, demand of payment, filing of claims with a court
in the event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands
whatsoever and covenant that this Guarantee will not be discharged except by
complete performance of the obligations contained in the Notes and this
Supplemental Indenture.


 


If
any Holder or the Trustee is required by any court or otherwise to return to
the Company, the Guarantors or any custodian, Trustee, liquidator or other
similar official acting in relation to either the Company or the Guarantors,
any amount paid by either to the Trustee or such Holder, this Guarantee, to the
extent theretofore discharged, will be reinstated in full force and effect.


 


Each
Guarantor agrees that it will not be entitled to any right of subrogation in
relation to the Holders in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby. Each Guarantor further
agrees that, as between the Guarantors, on the one hand, and the Holders and
the Trustee, on the other hand, (x) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article 6 hereof for the purposes of
this Guarantee, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby,
and (y) in the event of any declaration of acceleration of such obligations as
provided in Article 6 hereof, such obligations (whether or not due and payable)
will forthwith become due and payable by the Guarantors for the purpose of this
Guarantee. The Guarantors will have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair the
rights of the Holders under the Guarantee.


 


72

















 


Section 10.02         Limitation on Guarantor Liability.


 


Each
Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it
is the intention of all such parties that the Guarantee of such Guarantor not
constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law,
the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or
any similar federal or state law to the extent applicable to any Guarantee. To
effectuate the foregoing intention, the Trustee, the Holders and the Guarantors
hereby irrevocably agree that the obligations of such Guarantor under its
Guarantee and this Article 10 will be limited to the maximum amount as will,
after giving effect to such maximum amount and all other contingent and fixed
liabilities of such Guarantor that are relevant under such laws, and after
giving effect to any collections from, rights to receive contribution from or
payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under this Article 10, result in the
obligations of such Guarantor under its Guarantee not constituting a fraudulent
transfer or conveyance.


 


Section 10.03         Execution and Delivery of Guarantee.


 


To
evidence its Guarantee set forth in Section 10.01, each Guarantor hereby agrees
that a notation of such Guarantee substantially in the form included in Exhibit
C will be endorsed by an Officer of such Guarantor on each Note
authenticated and delivered by the Trustee and that this Supplemental Indenture
will be executed on behalf of such Guarantor by an Officer.


 


Each
Guarantor hereby agrees that its Guarantee set forth in Section 10.01 will
remain in full force and effect notwithstanding any failure to endorse on each
Note a notation of such Guarantee.


 


If
an Officer whose signature is on this Supplemental Indenture or on the Guarantee
no longer holds that office at the time the Trustee authenticates the Note on
which a Guarantee is endorsed, the Guarantee will be valid nevertheless.


 


The
delivery of any Note by the Trustee, after the authentication thereof
hereunder, will constitute due delivery of the Guarantee set forth in this
Supplemental Indenture on behalf of the Guarantors.


 


In
the event that the Company creates or acquires any new Subsidiaries subsequent
to the date of this Supplemental Indenture, if required by Section 4.16 hereof,
the Company will cause such Subsidiaries to execute supplemental indentures to
this Supplemental Indenture and Guarantees in accordance with Section 4.16
hereof and this Article 10, to the extent applicable.


 


Section 10.04         Guarantors May Consolidate, etc. on Certain Terms.


 


A
Guarantor may not sell or otherwise dispose of all or substantially all of its
assets to, or consolidate with or merge with or into, whether or not such
Guarantor is the surviving Person, another Person other than the Company or
another Guarantor, unless:


 


(a)           immediately after giving effect to
such transaction, no Default or Event of Default exists; and


 


(b)           either:


 


(1)           the Person formed by or surviving any
such consolidation or merger, if other than the Guarantor or the Company,
unconditionally assumes all the obligations of such Guarantor under this
Supplemental Indenture and its Guarantee pursuant to a supplemental indenture
in the form of Exhibit C hereto; or


 


73

















 


(2)           the Net Proceeds of such sale or
other disposition are applied in accordance with the applicable provisions of
this Supplemental Indenture.


 


In
case of any such consolidation, merger, sale or conveyance and upon the
assumption by the successor Person, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in the form of Exhibit C to
the Trustee, of the Guarantee endorsed upon the Notes and the due and punctual
performance of all of the covenants and conditions of this Supplemental Indenture
to be performed by the Guarantor, such successor Person will succeed to and be
substituted for the Guarantor with the same effect as if it had been named
herein as a Guarantor. Such successor Person thereupon may cause to be signed
any or all of the Guarantees to be endorsed upon all of the Notes issuable
hereunder. All the Guarantees so issued will in all respects have the same
legal rank and benefit under this Supplemental Indenture as the Guarantees
theretofore and thereafter issued in accordance with the terms of this
Supplemental Indenture as though all of such Guarantees had been issued at the
date of the execution hereof.


 


Except
as set forth in Articles 5 hereof, and notwithstanding clauses (a) and (b)
above, nothing contained in this Supplemental Indenture or in any of the Notes
will prevent any consolidation or merger of a Guarantor with or into the
Company or another Guarantor, or will prevent any sale or conveyance of the
property of a Guarantor as an entirety or substantially as an entirety to the
Company or another Guarantor. Upon any such consolidation or merger of any
Guarantor with or into another Guarantor or with or into the Company, the
Guarantee of the Guarantor that does not survive will no longer be of any force
or effect.


 


Section 10.05         Releases Following Sale of Assets.


 


In
the event of (a) any sale or other disposition of all or substantially all of
the assets of any Guarantor, including by way of merger, consolidation or
otherwise, to a Person that is not, either before or after giving effect to
such transaction, the Company or a Subsidiary of the Company, if the sale or
other disposition complies with Section 4.10 herein; (b) any sale or other
disposition of all of the Capital Stock of a Guarantor, including by way of
dividend of the Capital Stock of such Guarantor to the stockholders of the
Company, to a Person that is not, either before or after giving effect to such
transaction, the Company or a Subsidiary of the Company if the sale or other
disposition complies with Section  4.10
herein, or (c) if the Company designates any Restricted Subsidiary that is a
Guarantor to be an Unrestricted Subsidiary in accordance with Section 4.19 of
this Supplemental Indenture, then such Guarantor (in the event of a sale or
other disposition, by way of merger, consolidation or otherwise, of all of the
capital stock of such Guarantor) or the corporation acquiring the property (in
the event of a sale or other disposition of all or substantially all of the
assets of such Guarantor) will be released and relieved of any obligations
under its Guarantee; provided
that the Net Proceeds of such sale or other disposition are applied in
accordance with the applicable provisions of this Supplemental Indenture,
including without limitation Section 4.10 hereof. Upon delivery by the Company
to the Trustee of an Officers’ Certificate and an Opinion of Counsel to the
effect that such sale or other disposition was made by the Company in
accordance with the applicable provisions of this Supplemental Indenture, including
without limitation Section 4.10 hereof, the Trustee will execute any documents
reasonably required in order to evidence the release of any Guarantor from its
obligations under its Guarantee.


 


Any
Guarantor not released from its obligations under its Guarantee will remain
liable for the full amount of principal of and interest on the Notes and for
the other obligations of any Guarantor under this Supplemental Indenture as
provided in this Article 10.


 


74

















 


ARTICLE
11.

SATISFACTION AND DISCHARGE


 


Section 11.01         Satisfaction and Discharge.


 


This
Supplemental Indenture will be discharged and will cease to be of further
effect as to all Notes issued hereunder, when:


 


(1)           either:


 


(a)           all Notes that have been authenticated
(except lost, stolen or destroyed Notes that have been replaced or paid and
Notes for whose payment money has theretofore been deposited in trust and
thereafter repaid to the Company) have been delivered to the Trustee for
cancellation; or


 


(b)           all Notes that have not been
delivered to the Trustee for cancellation have become due and payable by reason
of the mailing of a notice of redemption or otherwise or will become due and
payable within one year and the Company or any Guarantor has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust
solely for the benefit of the Holders, cash in U.S. dollars, non-callable
Government Securities, or a combination of cash in U.S. dollars and
non-callable Government Securities, in such amounts as will be sufficient
without consideration of any reinvestment of interest, to pay and discharge the
entire indebtedness on the Notes not delivered to the Trustee for cancellation
for principal, premium and accrued interest to the date of maturity or
redemption;


 


(2)           no Default or Event of Default has
occurred and is continuing on the date of such deposit or will occur as a
result of such deposit and such deposit will not result in a breach or
violation of, or constitute a default under, any other instrument to which the
Company or any Guarantor is a party or by which the Company or any Guarantor is
bound;


 


(3)           the Company or any Guarantor has paid
or caused to be paid all sums payable by it under this Supplemental Indenture;
and


 


(4)           the Company has delivered irrevocable
instructions to the Trustee under this Supplemental Indenture to apply the
deposited money toward the payment of the Notes at maturity or the redemption
date, as the case may be.


 


In
addition, the Company must deliver an Officers’ Certificate and an Opinion of
Counsel to the Trustee stating that all conditions precedent to satisfaction
and discharge have been satisfied.


 


ARTICLE
12.

MISCELLANEOUS


 


Section 12.01         Trust Indenture Act Controls.


 


If
any provision of this Supplemental Indenture limits, qualifies or conflicts
with the duties imposed by TIA Section 318(c), the imposed duties will control.


 


75

















 


Section 12.02         Notices.


 


Any
notice or communication by the Company, any Guarantor or the Trustee to the
others is duly given if in writing and delivered in Person or mailed by first
class mail (registered or certified, return receipt requested), telecopier or
overnight air courier guaranteeing next day delivery, to the others’ address.


 


If
to the Company and/or any Guarantor:


 


Ball
Corporation

10 Longs Peak Drive

Broomfield, Colorado 80021-2510

Telecopier No.: (303) 460-2691

Attention: Treasurer


 


With
a copy to:


 


Skadden,
Arps, Slate, Meagher & Flom LLP

333 West Wacker Drive, Suite 2100 

Chicago, Illinois 60606 

Telecopier No.: (312) 407-0411 

Attention: Brian W. Duwe


 


If
to the Trustee:


 


The
Bank of New York Trust Company, N.A.

700 S. Flower Street, Suite 500

Los Angeles, CA 90017

Telecopier No.:  (213) 630-6298

Attention:  Corporate Trust
Administration


 


The
Company, any Guarantor or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or communications.


 


All
notices and communications (other than those sent to Holders) will be deemed to
have been duly given: at the time delivered by hand, if personally delivered;
five Business Days after being deposited in the mail, postage prepaid, if
mailed; when receipt acknowledged, if telecopied; and the next Business Day
after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery.


 


Any
notice or communication to a Holder will be mailed by first class mail postage
prepaid, certified or registered mail, return receipt requested, or by
overnight air courier guaranteeing next day delivery to its address shown on
the register kept by the Registrar. Any notice or communication will also be so
mailed to any Person described in TIA Section 313(c), to the extent required by
the TIA. Failure to mail a notice or communication to a Holder or any defect in
it will not affect its sufficiency with respect to other Holders.


 


If
a notice or communication is mailed in the manner provided above within the
time prescribed, it is duly given, whether or not the addressee receives it.


 


76

















 


If
the Company mails a notice or communication to Holders, it will mail a copy to
the Trustee and each Agent at the same time.


 


The
Trustee agrees to accept and act upon facsimile transmission of written
instructions or directions pursuant to this Supplemental Indenture, it being
understood that originals of such shall be provided to the Trustee in a timely
manner, and such originally executed instructions and/or directions shall be
signed by an authorized Officer of the Company.


 


Section 12.03         Communication by Holders of Notes with Other Holders
of Notes.


 


Holders
may communicate pursuant to TIA Section 312(b) with other Holders with respect
to their rights under this Supplemental Indenture or the Notes. The Company,
the Trustee, the Registrar and anyone else will have the protection of TIA
Section 312(c).


 


Section 12.04         Certificate and Opinion as to Conditions Precedent.


 


Upon
any request or application by the Company to the Trustee to take any action
under this Supplemental Indenture, the Company will furnish to the Trustee:


 


(a)           an Officers’ Certificate in form and
substance reasonably satisfactory to the Trustee (which will include the
statements set forth in Section 12.05 hereof) stating that, in the opinion of
the signers, all conditions precedent and covenants, if any, provided for in
this Supplemental Indenture relating to the proposed action have been
satisfied; and


 


(b)           except with respect to the initial
issuance of the Notes, an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which will include the statements set forth in
Section 12.05 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.


 


Section 12.05         Statements Required in Certificate.


 


Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Supplemental Indenture (other than a certificate provided
pursuant to TIA Section 314(a)(4)) will comply with the provisions of TIA
Section 314(e) and will include:


 


(a)           a statement that the Person making
such certificate or opinion has read such covenant or condition;


 


(b)           a brief statement as to the nature
and scope of the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;


 


(c)           a statement that, in the opinion of
such Person, he or she has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been satisfied; and


 


(d)           a statement as to whether or not, in
the opinion of such Person, such condition or covenant has been satisfied.


 


77

















 


Section 12.06         Rules by Trustee and Agents.


 


The
Trustee may make reasonable rules for action by or at a meeting of Holders. The
Registrar or Paying Agent may make reasonable rules and set reasonable
requirements for its functions.


 


Section 12.07         Calculation of Foreign Currency Amounts.


 


The
calculation of the U.S. dollar equivalent amount for any amount denominated in
a foreign currency will be the noon buying rate in the City of New York as
certified by the Federal Reserve Bank of New York on the date on which such determination
is required to be made or, if such day is not a day on which such rate is
published, the rate most recently published prior to such day.


 


Section 12.08         No Personal Liability of Directors, Officers,
Employees and Stockholders.


 


No
past, present or future director, officer, employee, incorporator or
stockholder of the Company or any Guarantor, as such, will have any liability
for any obligations of the Company or such Guarantor under the Notes, the
Guarantees, this Supplemental Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder by
accepting a Note waives and releases all such liability. The waiver and release
are part of the consideration for issuance of the Notes and the Guarantees. The
waiver may not be effective to waive liabilities under the federal securities
laws.


 


Section 12.09         Governing Law; Waiver of Jury Trial.


 


THE
INTERNAL LAWS OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS
SUPPLEMENTAL INDENTURE, THE NOTES AND THE GUARANTEES WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.


 


EACH
OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS 
SUPPLEMENTAL INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED
HEREBY.


 


Section 12.10         Force Majeure.


 


In
no event shall the Trustee be responsible or liable for any failure or delay in
the performance of its obligations hereunder arising out of or caused by,
directly or indirectly, forces beyond its control, including, without
limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil
or military disturbances, nuclear or natural catastrophes or acts of God, and
interruptions, loss or malfunctions of utilities, communications or computer
(software and hardware) services; it being understood that the Trustee shall
use reasonable efforts which are consistent with accepted practices in the
banking industry to resume performance as soon as practicable under the
circumstances.


 


Section 12.11         No Adverse Interpretation of Other Agreements.


 


This
Supplemental Indenture may not be used to interpret any other indenture, loan
or debt agreement of the Company or its Subsidiaries or of any other Person.
Any such indenture, loan or debt agreement may not be used to interpret this
Supplemental Indenture.


 


78

















 


Section 12.12         Successors.


 


All
agreements of the Company in this Supplemental Indenture and the Notes will
bind its successors. All agreements of the Trustee in this Supplemental
Indenture will bind its successors.


 


Section 12.13         Severability.


 


In
case any provision in this Supplemental Indenture or in the Notes will be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions will not in any way be affected or impaired thereby.


 


Section 12.14         Counterpart Originals.


 


The
parties may sign any number of copies of this Supplemental Indenture. Each
signed copy will be an original, but all of them together represent the same
agreement.


 


Section 12.15         Table of Contents, Headings, Etc.


 


The
Table of Contents, Cross-Reference Table and Headings of the Articles and
Sections of this Supplemental Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Supplemental Indenture
and will in no way modify or restrict any of the terms or provisions hereof.


 


[Signatures on following page]


 


79

















 


SIGNATURES


 


Dated
as of March 27, 2006


 


	
  BALL
  CORPORATION

  
	
   

  
	
  By:

  	
  /s/
  Scott C. Morrison

  
	
  Name:
  Scott C. Morrison

  
	
  Title:
  Vice President and Treasurer

  
	
   

  
	
  BALL
  AEROSPACE & TECHNOLOGIES CORP.

  
	
   

  
	
  By:

  	
  /s/
  Scott C. Morrison

  
	
  Name:
  Scott C. Morrison

  
	
  Title:
  Vice President and Treasurer

  
	
   

  
	
  BALL
  METAL BEVERAGE CONTAINER CORP.

  
	
   

  
	
  By:

  	
  /s/
  Scott C. Morrison

  
	
  Name:
  Scott C. Morrison

  
	
  Title:
  Vice President and Treasurer

  
	
   

  
	
  BALL
  METAL FOOD CONTAINER CORP.

  
	
   

  
	
  By:

  	
  /s/
  Scott C. Morrison

  
	
  Name:
  Scott C. Morrison

  
	
  Title:
  Vice President and Treasurer

  
	
   

  
	
  BALL
  METAL PACKAGING SALES CORP.

  
	
   

  
	
  By:

  	
  /s/
  Scott C. Morrison

  
	
  Name:
  Scott C. Morrison

  
	
  Title:
  Vice President and Treasurer

  
	
   

  
	
  BALL
  PACKAGING CORP.

  
	
   

  
	
  By:

  	
  /s/
  Scott C. Morrison

  
	
  Name:
  Scott C. Morrison

  
	
  Title:
  Vice President and Treasurer

  



 


1

















 


 


	
  BALL
  PLASTIC CONTAINER CORP.

  
	
   

  
	
  By:

  	
  /s/
  Scott C. Morrison

  
	
  Name:
  Scott C. Morrison

  
	
  Title:
  Vice President and Treasurer

  
	
   

  
	
  BALL
  TECHNOLOGIES HOLDING CORP.

  
	
   

  
	
  By:

  	
  /s/
  Scott C. Morrison

  
	
  Name:
  Scott C. Morrison

  
	
  Title:
  Vice President and Treasurer

  
	
   

  
	
  BG
  HOLDINGS I, INC.

  
	
   

  
	
  By:

  	
  /s/
  Scott C. Morrison

  
	
  Name:
  Scott C. Morrison

  
	
  Title:
  Vice President and Treasurer

  
	
   

  
	
  BG
  HOLDINGS II, INC.

  
	
   

  
	
  By:

  	
  /s/
  Scott C. Morrison

  
	
  Name:
  Scott C. Morrison

  
	
  Title:
  Vice President and Treasurer

  
	
   

  
	
  EFRATOM
  HOLDING, INC.

  
	
   

  
	
  By:

  	
  /s/
  Scott C. Morrison

  
	
  Name:
  Scott C. Morrison

  
	
  Title:
  Vice President and Treasurer

  
	
   

  
	
  LATAS
  DE ALUMINIO BALL, INC.

  
	
   

  
	
  By:

  	
  /s/
  Scott C. Morrison

  
	
  Name:
  Scott C. Morrison

  
	
  Title:
  Vice President and Treasurer

  



 


1

















 


	
  BALL
  PAN-EUROPEAN HOLDINGS, INC.

  
	
   

  
	
  By:

  	
  /s/
  Charles E. Baker

  
	
  Name:
  Charles E. Baker

  
	
  Title:
  Assistant Secretary

  
	
   

  
	
  METAL
  PACKAGING INTERNATIONAL, INC.

  
	
   

  
	
  By:

  	
  /s/
  Charles E. Baker

  
	
  Name:
  Charles E. Baker

  
	
  Title:
  Secretary

  
	
   

  
	
  BALL
  AEROSOL AND SPECIALTY CONTAINER 

  CORP.

  
	
   

  
	
  By:

  	
  /s/
  Scott C. Morrison

  
	
  Name:
  Scott C. Morrison

  
	
  Title:
  Vice President and Treasurer

  
	
   

  
	
  BALL
  DELAWARE HOLDINGS, LLC

  
	
   

  
	
  By:

  	
  /s/
  Scott C. Morrison

  
	
  Name:
  Scott C. Morrison

  
	
  Title:
  Vice President and Treasurer

  
	
   

  
	
  BALL
  METAL FOOD CONTAINER, LLC

  
	
   

  
	
  By:

  	
  /s/
  Scott C. Morrison

  
	
  Name:
  Scott C. Morrison

  
	
  Title:
  Vice President and Treasurer

  
	
   

  
	
  THE
  BANK OF NEW YORK TRUST COMPANY, 

  N.A.

  
	
  as
  Trustee

  
	
   

  
	
  By:

  	
  /s/
  Sandee’ Parks

  
	
  Name:
  Sandee’ Parks

  
	
  Title:
  Vice President

  



 


1

















 


EXHIBIT A


 


(Face of Note)


 


[Insert the Global Note Legend, if
applicable pursuant to the provisions of the Supplemental Indenture]


 


CUSIP/CINS 058498AL0


 


65/8% Senior Notes due 2018


 


	
  No.

  	
   

  	
  $

  



 


BALL CORPORATION


 


promises
to pay to                                                                                                                                                                                          


 


or
registered assigns,


 


the
principal sum of
                                                                                                                                                                                      


 


Dollars
on March 15, 2018.


 


Interest
Payment Dates:  March 15 and September 15


 


Record
Dates:  March 1 and September 1


 


Dated:
March 27, 2006


 


	
  BALL
  CORPORATION

  
	
   

  
	
  By:

  	
   

  
	
  Name:

  
	
  Title:

  



 


Date
of Authentication: March 27, 2006


 


This
is one of the Global

Notes referred to in the

within-mentioned Supplemental Indenture:


 


Dated:
March 27, 2006


 


THE
BANK OF NEW YORK TRUST COMPANY, N.A.

as Trustee


 


	
  By:

  	
   

  
	
  Name:

  
	
  Title:

  



 


A-1

















 


(Back of Note)

65/8% Senior Notes due 2018


 


Capitalized
terms used herein have the meanings assigned to them in the Supplemental
Indenture referred to below unless otherwise indicated.


 


1.  INTEREST. Ball Corporation, an
Indiana corporation (the “Company”),
promises to pay interest on the principal amount of this Note at 65/8% per annum from the date hereof until maturity. The Company will pay
interest semi-annually on March 15 and September 15 of each year, or if any
such day is not a Business Day, on the next succeeding Business Day (each an “Interest Payment Date”). Interest on the
Notes will accrue from the most recent date to which interest has been paid or,
if no interest has been paid, from the date of issuance; provided that if there is no existing
Default in the payment of interest, and if this Note is authenticated between a
record date referred to on the face hereof and the next succeeding Interest
Payment Date, interest will accrue from such next succeeding Interest Payment
Date; provided, further, that the first Interest Payment
Date will be September 15, 2006. The Company will pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal at the rate equal to the then applicable interest rate on the Notes
to the extent lawful; it will pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue installments of interest at
the same rate to the extent lawful. Interest will be computed on the basis of a
360-day year of twelve 30-day months.


 


2.  METHOD OF PAYMENT. The Company will pay interest
on the Notes (except defaulted interest) to the Persons who are registered
Holders of Notes at the close of business on the March 1 or September 1 next
preceding the Interest Payment Date, even if such Notes are canceled after such
record date and on or before such Interest Payment Date, except as provided in
Section 2.12 of the Supplemental Indenture with respect to defaulted interest.
Principal, premium, if any, and interest on the Notes will be payable at the
office or agency of the Paying Agent and Registrar within the City and State of
New York or, at the option of the Company, payment of interest may be made by
check mailed to the Holders of the Notes at their respective addresses set
forth in the register of Holders of Notes; provided
that all payments of principal, premium and interest with respect to Notes the
Holders of which have given wire transfer instructions to the Trustee will be
required to be made by wire transfer of immediately available funds to the
accounts specified by the Holders thereof. Such payment will be in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.


 


3.  PAYING AGENT AND REGISTRAR. Initially, The Bank
of New York Trust Company, N.A. the Trustee under the Supplemental Indenture,
will act as Paying Agent and Registrar. The Company may change any Paying Agent
or Registrar without notice to any Holder. The Company or any of its
Subsidiaries may act in any such capacity.


 


4.  INDENTURE. This Note is one of a duly
authenticated series of securities of the Company issued and to be issued in
one or more series under an indenture (the “Base
Indenture”), dated as of March 27, 2006, between the Company and the
Trustee, as amended by the First Supplemental Indenture (the “Supplemental Indenture” and, together with
the Base Indenture, the “Indenture”),
dated as of February 2, 2006, among the Company, the Guarantors and the
Trustee. The terms of the Notes include those stated in the Supplemental
Indenture and those made part of the Supplemental Indenture by reference to the
Trust Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb).
The Notes are subject to all such terms, and Holders are referred to the
Supplemental Indenture and such Act for a statement of such terms. To the
extent any provision of this Note conflicts with the express provisions of the
Base


 


A-2

















 


Indenture,
the provisions of this Note will govern and be controlling, and to the extent
any provision of this Note conflicts with the express provisions of the
Supplemental Indenture, the provisions of the Supplemental Indenture will
govern and be controlling. The Company will be entitled to issue Additional
Notes pursuant to Section 2.14 of the Supplemental Indenture.


 


5.  OPTIONAL REDEMPTION.


 


(a)  Except as
set forth in subparagraph (b) and (c) of this Paragraph 5, the Company will not
have the option to redeem the Notes prior to March 15, 2011. Thereafter, the
Company will have the option to redeem all or a part of the Notes, upon not
less than 30 nor more than 60 days’ notice, at the redemption prices, expressed
as percentages of principal amount, set forth below, plus accrued and unpaid
interest on the Notes redeemed to the applicable redemption date, if redeemed
during the twelve-month period beginning on March 15 of the years indicated
below:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2011

  	
   

  	
  103.313

  	
  %

  
	
  2012

  	
   

  	
  102.208

  	
  %

  
	
  2013

  	
   

  	
  101.104

  	
  %

  
	
  2014 and
  thereafter

  	
   

  	
  100.000

  	
  %

  



 


(b) 
Notwithstanding the provisions of subparagraph (a) of this Paragraph 5,
at any time prior to March 15, 2009, the Company may on any one or more
occasions redeem, in whole or in part, up to 35% of the aggregate principal
amount of Notes, including Additional Notes of the same class, if any, issued
under the Supplemental Indenture, at a redemption price of par plus the stated
interest rate, or 106.625% of the principal amount of the Notes redeemed, plus
accrued and unpaid interest thereon to the redemption date with the net cash
proceeds of one or more Equity Offerings; provided
that at least 65% of the aggregate principal amount of the Notes, including
Additional Notes of the same class, if any, issued under the Supplemental
Indenture, remains outstanding immediately after the occurrence of such
redemption, excluding Notes held by the Company and its Subsidiaries; and the
redemption occurs within 90 days of the date of the closing of such Equity
Offering.


 


(c)  At any
time prior to March 15, 2011, the Company, at its option, may redeem all
or a part of the notes, upon not less than 30 nor more than 60 days’ prior
notice, at a redemption price equal to 100% of the principal amount of notes
redeemed plus the Applicable Premium as of, and accrued and unpaid interest, if
any, to the date of redemption, subject to the rights of Holders of Notes on
the relevant record date to receive interest due on the relevant interest
payment date.


 


6.   MANDATORY REDEMPTION. The Company is not be
required to make mandatory redemption payments with respect to the Notes.


 


7.  REPURCHASE AT OPTION OF HOLDER.


 


(a)  If a Change of Control occurs, and
the Company does not redeem the Notes as described under clause (5) above
within 60 days after the Change of Control, the Company will be required to
make an offer (a “Change of Control Offer”)
to repurchase all or any part, equal to $1,000 or an integral multiple thereof,
of each Holder’s Notes at a purchase price in cash equal to 101% of the
aggregate principal amount of the Notes repurchased plus accrued and unpaid
interest on the Notes repurchased to the date of purchase (the “Change of Control


 


A-3

















 


Payment”). Within 30 days following any Change of Control or, at the Company’s
option, prior to the consummation of such Change of Control but after the
public announcement thereof, the Company will mail a notice to each Holder
setting forth the procedures governing the Change of Control Offer as required
by the Supplemental Indenture.


 


(b)  If the Company or a Restricted
Subsidiary consummates any Asset Sales and the aggregate amount of Excess
Proceeds exceeds $50 million, the Company will commence an offer to all Holders
of Notes and all holders of other Indebtedness that is pari passu with the Notes containing
provisions similar to those set forth in the Supplemental Indenture with
respect to offers to purchase or redeem with the proceeds of sales of assets to
purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be
purchased out of the Excess Proceeds (an “Asset
Sale Offer”) pursuant to Section 3.09 of the Supplemental Indenture
at an offer price in cash in an amount equal to 100% of the principal amount
plus accrued and unpaid interest to the date of purchase and will be payable in
cash. To the extent that the aggregate amount of Notes and other pari passu Indebtedness tendered pursuant
to an Asset Sale Offer is less than the Excess Proceeds, the Company (or such
Subsidiary) may use those Excess Proceeds for any purpose not otherwise
prohibited by the Supplemental Indenture. If the aggregate principal amount of
Notes and other pari passu Indebtedness
surrendered by Holders thereof exceeds the amount of Excess Proceeds, the
Trustee will select the Notes and other pari
passu Indebtedness to be purchased on a pro rata basis. Holders of Notes that are the subject of an
offer to purchase will receive an Asset Sale Offer from the Company prior to
any related purchase date and may elect to have such Notes purchased by
completing the form entitled “Option of Holder to Elect Purchase” on the
reverse of the Notes.


 


8.  NOTICE OF REDEMPTION. Notice of redemption will
be mailed at least 30 days but not more than 60 days before the redemption date
to each Holder whose Notes are to be redeemed at its registered address. Notes
in denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date interest ceases to accrue on Notes
or portions thereof called for redemption.


 


9.  DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are
in registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. Notes may be transferred or exchanged as provided in the
Supplemental Indenture. The Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and the Company may require a Holder to pay any taxes and fees required by law
or permitted by the Supplemental Indenture. The Company need not exchange or
transfer any Note or portion of a Note selected for redemption, except for the
unredeemed portion of any Note being redeemed in part. Also, the Company need
not exchange or register the transfer of any Notes for a period of 15 days
before a selection of Notes to be redeemed or during the period between a
record date and the corresponding Interest Payment Date.


 


10.  PERSONS DEEMED OWNERS. The registered Holder of a
Note may be treated as its owner for all purposes.


 


11.  AMENDMENT, SUPPLEMENT AND WAIVER. The Base
Indenture may be amended as provided therein. Subject to certain exceptions,
the Supplemental Indenture, the Guarantees or the Notes may be amended or
supplemented with the consent of the Holders of at least a majority in
principal amount of the Notes then outstanding, including, without limitation,
consents obtained in connection with a purchase of, or tender offer or exchange
offer for, Notes, voting as a single class, and any existing default or
compliance with any provision of the Supplemental


 


A-4

















 


Indenture,
the Guarantees or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes, including, without
limitation, consents obtained in connection with a purchase of, or tender offer
or exchange offer for, Notes, voting as a single class. Without the consent of
any Holder of a Note, the Supplemental Indenture, the Guarantees or the Notes
may be amended or supplemented (i) to cure any ambiguity, defect or
inconsistency; (ii) to provide for uncertificated Notes in addition to or in
place of certificated Notes; (iii) to provide for the assumption of the
Company’s or Guarantor’s obligations to Holders of the Notes in case of a
merger or consolidation or sale of all or substantially all of the Company’s
assets (iv) to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect the
legal rights under the Supplemental Indenture of any such Holder; (v) to comply
with the requirements of the SEC in order to effect or maintain the
qualification of the Supplemental Indenture under the Trust Indenture Act, to
provide for the issuance of Additional Notes in accordance with the
Supplemental Indenture or to allow any Guarantor to execute a supplemental
indenture to the Supplemental Indenture and/or a Guarantee with respect to the
Note; (vi) to conform the text of the Supplemental Indenture or the Notes to
any provision of the Description of Notes to the extent that such provision in
the Description of Notes was intended to be a verbatim recitation of a
provision of the Supplemental Indenture or the Notes; (vii) to evidence and
provide for the acceptance of appointment by a successor trustee; (viii) to add
Guarantees with respect to the Notes; (ix) to secure the Notes or (x) to
release any Lien granted in favor of the Holders of the Notes pursuant to
Section 4.09 of the Supplemental Indenture upon release of the Lien securing
the underlying obligation that gave rise to such Lien.


 


12.  DEFAULTS AND REMEDIES. An “EVENT OF DEFAULT”
occurs if:  (i) default for a period of
30 days in the payment when due of interest on the Notes; (ii) default in the
payment when due of principal of or premium, if any, on the Notes; (iii) the
Company or any of its Restricted Subsidiaries fails to comply with the
provisions of Section 5.01 of the Supplemental Indenture; (iv) the Company or
any of its Restricted Subsidiaries fails for 30 days after notice to the
Company to comply with any of the provisions of Sections 4.07, 4.09, 4.10 or
4.15 of the Supplemental Indenture; (v) the Company or any of its Restricted
Subsidiaries fails for 60 days after notice to comply with any of the other
agreements in the Supplemental Indenture or the Notes; (vi) the Company or any
of its Restricted Subsidiaries defaults under any mortgage, indenture or
instrument under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or any of its
Restricted Subsidiaries (other than a Securitization Entity) (or the payment of
which is guaranteed by the Company or any of its Restricted Subsidiaries (other
than a Securitization Entity)) whether such Indebtedness or guarantee now
exists, or is created after the date of this Supplemental Indenture, if that
default (a) is caused by a failure to pay principal of or premium, if any, or
interest on such Indebtedness on or before the expiration of the grace period
provided in such Indebtedness on the date of such default (a “Payment Default”) or (b) results in the
acceleration of such Indebtedness prior to its express maturity and, in each
case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a Payment
Default or the maturity of which has been so accelerated, aggregates without
duplication $50 million or more or its foreign currency equivalent; (vii) the
Company or any of its Restricted Subsidiaries fails to pay final judgments
aggregating in excess of $50 million or its foreign currency equivalent,
excluding amounts covered by insurance, which judgments are not paid,
discharged or stayed for a period of 60 days; (viii) certain events of
bankruptcy or insolvency occur with respect to the Company or any of its
Significant Subsidiaries that are Restricted Subsidiaries or any group of
Restricted Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary pursuant to or within the meaning of Bankruptcy Law; or (ix) except
as permitted by the Supplemental Indenture, any Guarantee will be held in any
judicial proceeding


 


A-5

















 


to
be unenforceable or invalid or will cease for any reason to be in full force
and effect or any Guarantor, or any Person acting on behalf of any Guarantor,
will deny or disaffirm its obligations under such Guarantor’s Guarantee.


 


If any Event of Default occurs and is continuing,
the Trustee or the Holders of at least 25% in principal amount of the then
outstanding Notes may declare all the Notes to be due and payable.
Notwithstanding the foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency, with respect to the Company or any
Significant Subsidiary or any group of Restricted Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary pursuant to or within the
meaning of Bankruptcy Law, all outstanding Notes will become due and payable
without further action or notice. Holders may not enforce the Supplemental
Indenture or the Notes except as provided in the Supplemental Indenture.
Subject to certain limitations, Holders of a majority in principal amount of
the then outstanding Notes may direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Holders of the Notes notice of any
continuing Default or Event of Default if it determines that withholding notice
is in their interest, except a Default or Event of Default relating to the
payment of principal or interest. The Holders of a majority in aggregate
principal amount of the Notes then outstanding by notice to the Trustee may on
behalf of the Holders of all of the Notes waive any existing Default or Event
of Default and its consequences under the Supplemental Indenture except a continuing
Default or Event of Default in the payment of interest on, or the principal of,
the Notes. The Company is required to deliver to the Trustee annually a
statement regarding compliance with the Supplemental Indenture, and the Company
is required upon becoming aware of any Default or Event of Default, to deliver
to the Trustee a statement specifying such Default or Event of Default.


 


13.  TRUSTEE DEALINGS WITH COMPANY. The Trustee, in
its individual or any other capacity, may make loans to, accept deposits from,
and perform services for the Company or its Affiliates, and may otherwise deal
with the Company or its Affiliates, as if it were not the Trustee.


 


14.  NO RECOURSE AGAINST OTHERS. A director, officer,
employee, incorporator or stockholder, of the Company or any Guarantor, as
such, will not have any liability for any obligations of the Company or the
Guarantors under the Notes, the Guarantees or the Supplemental Indenture or for
any claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of Notes by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the
issuance of the Notes.


 


15.  AUTHENTICATION. This Note will not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.


 


16.  ABBREVIATIONS. Customary abbreviations may be
used in the name of a Holder or an assignee, such as:  TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).


 


17.  CUSIP NUMBERS. Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification Procedures, the
Company has caused CUSIP numbers to be printed on the Notes and the Trustee may
use CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon. The Company
will furnish to any Holder upon


 


A-6

















 


written
request and without charge a copy of the Base Indenture, the Supplemental
Indenture and the Guarantees. Requests may be made to:


 


Ball
Corporation

10 Longs Peak Drive

Broomfield, Colorado 80021-2510

Telecopier No.: (303) 460-2691

Attention: Chief Financial Officer


 


A-7

















 


ASSIGNMENT FORM


 


	
  To assign this Note, fill in the form below:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (I)
  or (we) assign and transfer this Note to:

  	
   

  
	
   

  	
   

  	
  (Insert assignee’s legal name)

  
	
   

  	
   

  	
   

  
	
  (Insert assignee’s soc. sec. or tax I.D. no.)

  
	
   

  
	
   

  
	
   

  
	
   

  
	
  (Print or type assignee’s name, address and zip code)

  
	
  and
  irrevocably appoint

  	
   

  
	
  to
  transfer this Note on the books of the Company. The agent may substitute
  another to act for him.

  
	
   

  	
   

  	
   

  
	
  Date:
  

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Your
  Signature:

  	
   

  
	
   

  	
   

  	
  (sign
  exactly as your name appears on the face of this senior note)

  
	
   

  	
   

  	
   

  
	
   

  	
  Tax
  Identification No:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Signature
  Guarantee:

  	
   

  
											



 


Signatures
must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program (“STAMP”) or
such other “signature guarantee program” as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.


 


A-8

















 


Option of Holder to Elect Purchase


 


If
you want to elect to have this Note purchased by the Company pursuant to
Section 4.10 or 4.15 of the Supplemental Indenture, check the box below:


 


o  Section 4.10                                                                     o  Section 4.15


 


If
you want to elect to have only part of the Note purchased by the Company
pursuant to Section 4.10 or Section 4.15 of the Supplemental Indenture, state
the amount you elect to have purchased: $                      


 


	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Your
  Signature:

  	
   

  
	
   

  	
  (sign exactly as your name appears on the face of
  this senior note)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Tax
  Identification No:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Signature
  Guarantee:

  	
   

  
						



 


Signatures
must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program (“STAMP”) or
such other “signature guarantee program” as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.


 


A-9

















 


EXHIBIT B


 


FORM OF NOTATION OF GUARANTEE


 


For
value received, each Guarantor (which term includes any successor Person under
the Supplemental Indenture) has, jointly and severally, unconditionally
guaranteed, to the extent set forth in the Supplemental Indenture and subject
to the provisions in the indenture (the “Base
Indenture”), dated as of March 27, 2006, between Ball Corporation,
(the “Company”) and The Bank of
New York Trust Company, N.A., as trustee (the “Trustee”),
as amended by the Supplemental Indenture (the “Supplemental
Indenture” and, together with the Base Indenture, the “Indenture”), dated as of March 27, 2006,
among the Company, the Guarantors named on the signature pages thereto and the
Trustee, (a) the due and punctual payment of the principal of, premium, if any,
and interest on the Notes (as defined in the Supplemental Indenture), whether
at maturity, by acceleration, redemption or otherwise, the due and punctual
payment of interest on overdue principal and premium, and, to the extent
permitted by law, interest, and the due and punctual performance of all other
obligations of the Company to the Holders or the Trustee all in accordance with
the terms of the Supplemental Indenture and (b) in case of any extension of
time of payment or renewal of any Notes or any of such other obligations, that
the same will be promptly paid in full when due or performed in accordance with
the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise. The obligations of the Guarantors to the Holders of
Notes and to the Trustee pursuant to the Guarantee and the Supplemental
Indenture are expressly set forth in Article 10 of the Supplemental Indenture
and reference is hereby made to the Supplemental Indenture for the precise
terms of the Guarantee. Each Holder of a Note, by accepting the same, agrees to
and will be bound by such provisions and appoints the Trustee attorney-in-fact
of such Holder for such purpose.


 


	
  [Name
  of Guarantor(s)]

  
	
   

  
	
  By:

  	
   

  
	
  Name:

  
	
  Title:

  



 


B-1

















 


EXHIBIT C


 


FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT GUARANTORS


 


SUPPLEMENTAL INDENTURE (this “Supplemental
Indenture”), dated as of                      ,
200    , among                         
(the “Guaranteeing Subsidiary”),
a subsidiary of Ball Corporation (or its permitted successor), an Indiana
corporation (the “Company”), the
Company, the other Guarantors (as defined in the First Supplemental Indenture
referred to herein) and The Bank of New York Trust Company, N.A. as trustee
under the First Supplemental Indenture referred to below (the “Trustee”).


 


W I T N E S S E T H


 


WHEREAS,
the Company has heretofore executed and delivered to the Trustee an indenture
(the “Base Indenture”), dated as
of March 27, 2006, between the Company and the Trustee, as amended by a first
supplemental indenture (the “First
Supplemental Indenture” and,
together with the Base Indenture, the “Indenture”),
dated as of March 27, 2006, among the Company, the Guarantors named therein and
the Trustee, providing for the original issuance of an aggregate principal
amount of $450 million of 6.625% Senior Notes due 2018 (the “Notes”);


 


WHEREAS,
the First Supplemental Indenture provides that under certain circumstances the
Guaranteeing Subsidiary will execute and deliver to the Trustee a supplemental
indenture pursuant to which the Guaranteeing Subsidiary will unconditionally
guarantee all of the Company’s Obligations under the Notes and the Indenture on
the terms and conditions set forth herein (the “Note Guarantee”); and


 


WHEREAS,
pursuant to Section 9.01 of the First Supplemental Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.


 


NOW
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Guaranteeing
Subsidiary and the Trustee mutually covenant and agree for the equal and
ratable benefit of the Holders of the Notes as follows:


 


1.             Capitalized
Terms. Capitalized terms used herein without definition will have
the meanings assigned to them in the First Supplemental Indenture.


 


2.             Agreement
to Guarantee. The Guaranteeing Subsidiary hereby agrees as follows:


 


(a)           Along
with all Guarantors named in the First Supplemental Indenture, to jointly and
severally Guarantee to each Holder of a Note authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns, the Notes or the
obligations of the Company hereunder or thereunder, that:


 


(i)            the
principal of, and premium, if any, and interest on the Notes will be promptly
paid in full when due, whether at maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal of and interest on the Notes,
if any, if lawful, and all other obligations of the Company to the Holders or
the Trustee hereunder or thereunder will be promptly paid in full or performed,
all in accordance with the terms hereof and thereof; and


 


C-1

















 


(ii)           in
case of any extension of time of payment or renewal of any Notes or any of such
other obligations, that same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise. Failing payment when due of any
amount so guaranteed or any performance so guaranteed for whatever reason, the
Guarantors will be jointly and severally obligated to pay the same immediately.


 


(b)           The
obligations hereunder will be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or the First Supplemental Indenture,
the absence of any action to enforce the same, any waiver or consent by any
Holder of the Notes with respect to any provisions hereof or thereof, the
recovery of any judgment against the Company, any action to enforce the same or
any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a Guarantor.


 


(c)           The
following is hereby waived:  diligence,
presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding
first against the Company, protest, notice and all demands whatsoever.


 


(d)           This
Note Guarantee will not be discharged except by complete performance of the
obligations contained in the Notes and the First Supplemental Indenture, and
the Guaranteeing Subsidiary accepts all obligations of a Guarantor under the
First Supplemental Indenture.


 


(e)           If
any Holder or the Trustee is required by any court or otherwise to return to
the Company, the Guarantors, or any custodian, trustee, liquidator or other similar
official acting in relation to either the Company or the Guarantors, any amount
paid by either to the Trustee or such Holder, this Note Guarantee, to the
extent theretofore discharged, will be reinstated in full force and effect.


 


(f)            The
Guaranteeing Subsidiary will not be entitled to any right of subrogation in
relation to the Holders in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby.


 


(g)           As
between the Guarantors, on the one hand, and the Holders and the Trustee, on
the other hand, (x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article 6 of the First Supplemental Indenture for
the purposes of this Note Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any declaration of acceleration of
such obligations as provided in Article 6 of the First Supplemental Indenture,
such obligations (whether or not due and payable) will forthwith become due and
payable by the Guarantors for the purpose of this Note Guarantee.


 


(h)           The
Guarantors will have the right to seek contribution from any non-paying
Guarantor so long as the exercise of such right does not impair the rights of
the Holders under the Note Guarantee.


 


(i)            Pursuant
to Section 10.02 of the First Supplemental Indenture, after giving effect to
any maximum amount and all other contingent and fixed liabilities that are
relevant under any applicable Bankruptcy or fraudulent conveyance laws, and
after


 


C-2

















 


giving
effect to any collections from, rights to receive contribution from or payments
made by or on behalf of any other Guarantor in respect of the obligations of
such other Guarantor under Article 10 of the First Supplemental Indenture, this
new Note Guarantee will be limited to the maximum amount permissible such that
the obligations of such Guarantor under this Note Guarantee will not constitute
a fraudulent transfer or conveyance.


 


3.             Execution
and Delivery. Each Guaranteeing Subsidiary agrees that the Note
Guarantees will remain in full force and effect notwithstanding any failure to
endorse on each Note a notation of such Note Guarantee.


 


4.             Guaranteeing
Subsidiary may Consolidate, etc. on Certain Terms.


 


(a)           The
Guaranteeing Subsidiary may not sell or otherwise dispose of all substantially
all of its assets to, or consolidate with or merge with or into (whether or not
such Guarantor is the surviving Person) another Person, other than the Company
or another Guarantor unless:


 


(i)            immediately
after giving effect to such transaction, no Default or Event of Default exists;
and


 


(ii)           either
(A) subject to Sections 10.04 and 10.05 of the First Supplemental Indenture,
the Person acquiring the property in any such sale or disposition or the Person
formed by or surviving any such consolidation or merger unconditionally assumes
all the obligations of that Guarantor, pursuant to a supplemental indenture in
form and substance reasonably satisfactory to the Trustee, under the Notes, the
First Supplemental Indenture and the Note Guarantee on the terms set forth
herein or therein; or (B) the Net Proceeds of such sale or other disposition
are applied in accordance with the applicable provisions of the First
Supplemental Indenture, including without limitation, Section 4.10 thereof.


 


(b)           In
case of any such consolidation, merger, sale or conveyance and upon the
assumption by the successor Person, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the Note
Guarantee endorsed upon the Notes and the due and punctual performance of all
of the covenants and conditions of the First Supplemental Indenture to be performed
by the Guarantor, such successor Person will succeed to and be substituted for
the Guarantor with the same effect as if it had been named herein as a
Guarantor. Such successor Person thereupon may cause to be signed any or all of
the Note Guarantees to be endorsed upon all of the Notes issuable under the
First Supplemental Indenture which theretofore will not have been signed by the
Company and delivered to the Trustee. All the Note Guarantees so issued will in
all respects have the same legal rank and benefit under the First Supplemental
Indenture as the Note Guarantees theretofore and thereafter issued in
accordance with the terms of the First Supplemental Indenture as though all of
such Note Guarantees had been issued at the date of the execution hereof.


 


(c)           Except
as set forth in Articles 4 and 5 and Section 10.05 of Article 10 of the First
Supplemental Indenture, and notwithstanding clauses (a) and (b) above, nothing
contained in the First Supplemental Indenture or in any of the Notes will prevent
any consolidation or merger of a Guarantor with or into the Company or another
Guarantor, or will prevent any sale or conveyance of the property of a
Guarantor as an entirety or substantially as an entirety to the Company or
another Guarantor.


 


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5.             Releases.


 


(a)           In
the event of any sale or other disposition of all or substantially all of the
assets of any Guarantor, by way of merger, consolidation or otherwise, or a
sale or other disposition of all of the capital stock of any Guarantor, in each
case to a Person that is not (either before or after giving effect to such
transaction) a Subsidiary of the Company, then such Guarantor (in the event of
a sale or other disposition, by way of merger, consolidation or otherwise, of
all of the capital stock of such Guarantor) or the corporation acquiring the
property (in the event of a sale or other disposition of all or substantially
all of the assets of such Guarantor) will be released and relieved of any obligations
under its Note Guarantee; provided
that the Net Proceeds of such sale or other disposition are applied in
accordance with the applicable provisions of the Supplemental Indenture,
including without limitation Section 4.10 of the First Supplemental Indenture.
Upon delivery by the Company to the Trustee of an Officers’ Certificate and an
Opinion of Counsel to the effect that such sale or other disposition was made
by the Company in accordance with the provisions of the First Supplemental
Indenture, including without limitation Section 4.10 of the First Supplemental
Indenture, the Trustee will execute any documents reasonably required in order
to evidence the release of any Guarantor from its obligations under its Note
Guarantee.


 


(b)           Any
Guarantor not released from its obligations under its Note Guarantee will
remain liable for the full amount of principal of and interest on the Notes and
for the other obligations of any Guarantor under the First Supplemental
Indenture as provided in Article 10 of the First Supplemental Indenture.


 


6.             No
Recourse Against Others. No past, present or future director,
officer, employee, incorporator, stockholder or agent of the Guaranteeing
Subsidiary, as such, will have any liability for any obligations of the Company
or any Guaranteeing Subsidiary under the Notes, any Note Guarantees, the
Indenture or this Supplemental Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder of the
Notes by accepting a Note waives and releases all such liability. The waiver
and release are part of the consideration for issuance of the Notes. Such
waiver may not be effective to waive liabilities under the federal securities
laws and it is the view of the SEC that such a waiver is against public policy.


 


7.             New York Law to Govern. THE INTERNAL LAW OF
THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL
INDENTURE BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF
LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION
WOULD BE REQUIRED THEREBY.


 


8.             Counterparts.
The parties may sign any number of copies of this Supplemental Indenture. Each
signed copy will be an original, but all of them together represent the same
agreement.


 


9.             Effect
of Headings. The Section headings herein are for convenience only
and will not affect the construction hereof.


 


10.           The
Trustee. The Trustee will not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Guaranteeing Subsidiary and the Company.


 


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IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to
be duly executed and attested, all as of the date first above written.


 


	
  Dated:

  	
   

  	
  ,
  20

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [GUARANTEEING SUBSIDIARY]

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  [COMPANY]

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  [EXISTING GUARANTORS]

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  [TRUSTEE],

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
   

  
	
   

  	
  Authorized Signatory

  
	
   

  	
   

  



 


C-5